A member of staff sent flowers for Valentine's day to another worker and has since been sending unwelcome text messages during the working day and weekend. How should we deal with this?
The key issue here is one of harassment, whether under the Sex Discrimination Act, the Protection from Harassment Act, or both. Either way, the matter is potentially very serious.
Sexual harassment is widely defined in the Sex Discrimination Act 1975. Legally speaking, it is unwanted conduct on the grounds of the recipient's sex, or unwanted conduct of a sexual nature which has the purpose or effect of violating the recipient's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
The Protection from Harassment Act 1997 prohibits a person from pursuing a course of conduct that amounts to harassment and which that person knows or ought to know amounts to harassment. There are solid tactical reasons why an employee may prefer to use the Protection from Harassment Act.
As soon as you are aware of allegations of harassment you must act quickly and fairly. Failure to respond properly may give the aggrieved employee claims against you, in addition to any claims that you are vicariously responsible for the harassment in question. After preliminary enquiries, it may also be necessary to consider if suspension is appropriate. If there is a suspension, make it clear that this is a neutral step and not disciplinary.
Do not forget that there are two parties involved, and that if you react against the alleged harasser without proper investigation, or if you over-react, you risk claims of discrimination and, if the employee resigns, constructive dismissal. There must be no pre-judgement, and a fair and balanced approach and response.
The key to this matter will be the nature and number of the text messages. The more that have been sent or the more offensive, humiliating or degrading, etc, they are, the greater the disciplinary penalty that will be justified. At the lower end of the scale (a few mild text messages), counselling may be the appropriate sanction. But in the most serious cases, where there are repeated or explicit texts, and the recipient has made it known that they are unwanted, dismissal may be justified.
Catherine Gannon is director of law firm Gannons