Employment Bulletin
4 April 2008
Protecting staff from harassment by customers
What is the employer's responsibility if a member of staff suffers sxeual harassment from a customer, client or some other third party contact?
From 6 April 2008 there are specific changes to the Sxe Discrimination Act which give additional special protection to employees in this situation. An employer is liable for sxeual harassment - but only if the employer has failed to take reasonably practicable steps to stop this happening. Further, this only applies if the employer knows that the women employee has been subject to harassment on at least two other occasions by a third party.
This makes it important for employers to monitor complaints of this kind.
Of course if there is any single incident, it would be good practice to follow this up without waiting for further complaints.
ACAS conciliation periods
Once an Employment Tribunal claim is issued, ACAS has a duty to offer conciliation, and a Conciliation Officer will normally make contact with parties. Since 2004 conciliation has been reduced and has been available only during fixed conciliation periods, the idea being to try to get parties to settle the dispute at an earlier stage.
This has not proved effective, and the Government has already signalled the intention to do away with fixed conciliation periods. ACAS has helpfully said that with immediate effect it is prepared to conciliate in all cases, regardless of the fixed conciliation period.
Employment mediation
Mediation is increasingly being used as a method of resolving employment disputes. There are three options.
There is an ACAS Mediation Service, but this is normally limited to situations where the objective is to re-integrate the employee back into the workplace once a dispute has arisen, usually prior to the issue of a Tribunal claim. ACAS will offer a full mediation service (in these circumstances), rather than the more limited and familiar telephone conciliation service.
Some Tribunals are now offering a pilot scheme involving judicial mediation. An Employment Judge is available to mediate a dispute acting entirely as a mediator rather than as a Judge. If the case does not settle, it will proceed to a Tribunal hearing and a different Employment Judge will then hear the case.
In addition there has always been the availability of the full range of private mediators.
Anecdotal information seems to suggest that mediation is increasingly being used particularly in more difficult and sensitive cases, before for example discrimination claims.
For further information on either of these articles, please contact Mike Davies at mdavies@vwl.co.uk or on 0117 314 5336.
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
