A nickname bestowed on one employee by a colleague – or group of colleagues – may also prompt a complaint to be made, especially if the nickname refers to one of the nine protected characteristics under the Equality Act 2010.
Part of the employer’s duty of care towards their employees is to protect them from harassment. If they fail to discharge this duty by either intention, connivance or indirectly through not putting into practice measures to prohibit, forbid or outlaw harassment, they could be held liable if a claim of discrimination arises.
What might otherwise be described as ‘banter’ or ‘harmless fun’ can serve as the background noise that gives rise to actual acts of discrimination. If such an act takes place, the fact that offensive nicknames were used, even if no offence was taken at the time, can be used to point to an atmosphere of discrimination. In Nolan v CD Bramall Dealership Ltd t/a Evans Halshaw Motorhouse Worksop ET/2601000/12, Mr Nolan (who was due to retire the following year) was the subject of various jokes connected with his age, including changing the number plate on his car so that it read OAP rather than OAB and nicknaming him “Yoda”. Despite him laughing along with the pranks and comments, when it came to selection for job losses, he was made redundant. He claimed unfair dismissal on the grounds of age discrimination and cited the comments and atmosphere as factors that contributed to his selection.
In another case, a salesman was dismissed following customer complaints about him being old fashioned and ‘long in the tooth’, attitudes that were seemingly accepted by his employer without question. He was also referred to by his colleagues as ‘Gramps’ although he did not complain about this term. Nevertheless, when he took his employer to the Employment Tribunal for age discrimination, he was able to adduce the use of the term ‘Gramps’ as evidence of a culture of ageism in the workplace. The tribunal agreed with him and awarded him more than £63,000 for age discrimination.
An employer can be held vicariously liable for harassment that is perpetrated by an employee in the course of their employment. This may also include harassment that was committed outside normal working hours or working premises.
If harassment is carried out by a third party, such as contractors, customers or other visitors, the employer could be held liable if they were made aware of such occurrences and did not take reasonable steps to stop them.
Employment Tribunals will usually award compensation in the event that a claim of harassment is proven. The compensation may include a sum relating to injury to feelings.
Employers should also remember that the public, including members of the press, can attend Tribunal judgment hearings. An adverse judgment can very quickly become common knowledge, either through the press or via the internet/social media and this can seriously damage a company’s reputation.
What should employers do?
The best time to deal with accusations of harassment is long before they happen. This refers to devising and implementing measures to create a positive workplace culture, rather than one where harassment is regarded as commonplace and acceptable. This requires a lot of work, particularly if it involves changing attitudes that might be particularly entrenched. That might include up-to-date training on harassment and equal opportunities and drafting and implementation of robust anti-harassment policies in the staff handbook; the employees must be left in no doubt regarding both the expectations made of them and the attitude of the employer if they transgress those expectations.
An employer who can point to the efforts they have made to prevent harassment in the workplace will have a better defence to offer if the claim goes to Tribunal.
What steps should be on an employer’s harassment prevention checklist?
Draw up and implement an anti-harassment/equal opportunities policy. Make sure that everyone is aware of it, has read it and is familiar with its contents.
Create and distribute a statement on behalf of the organisation that lays out its views on the standards of behaviour and conduct it expects of its employees and other people who make use of the premises/services.
Make sure that any procedures in place for dealing with complaints from employees are clear and fair.
Set up a training programme for all managers and employees, making clear what constitutes discrimination and harassment so that they know how to behave towards each other and customers.
Similarly, managers should receive training on how to handle allegations or instances of harassment.
If, despite putting these actions into operation, an allegation of harassment is made, there are several steps that should be taken to respond to it.
The complaint should be investigated confidentially and not by anybody who has been named in it.
Consult the employee who has made the allegation regarding their preferred course of action – would they want the complaint to be dealt with through formal channels or informally?
To avoid complications, the employer should decide whether they are going to:
i) suspend the accused on full pay, ii) remove the accuser from the situation, iii) make other temporary changes to work arrangements until the investigation and allegation have been resolved.
If the investigation reveals that harassment has occurred, prompt action should be taken to demonstrate to all concerned that the employer takes such things very seriously.
If the person who is alleged to have harassed somebody is an employee, they can be dealt with through the standard disciplinary procedure but if the harasser is a third party, customer, contractor or other visitor to the premises, they will have to be dealt with in a different manner, either by contacting them to point out that their behaviour is unacceptable or ending the employer’s relationship with them.