Employment Law Basics for Hawaii Employers – Policies and Training for Prevention and Risk Reduction

It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with “immediate (or successively higher) authority over the employee.” However, in cases where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to avoid Title VII liability and damages.

Under such affirmative defense whether an employer has an anti-harassment policy is relevant evidence. Also important is effective supervisory training and training of employees on the harassment policy and complaint procedure.

Training and educational programs for all employees take on an even higher degree of importance under Hawaii state law, HRS Chapter 378. State law currently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors.

While the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s–that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even though the supervisor did not even have direct supervisory authority over the Complainant.

The April 16, 2009 Illinois decision will certainly be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation. Accordingly, it is critical that Hawaii employers understand the importance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.

I. The Importance of Having an Effective Harassment Policy

A. The Faragher/Ellerth Defense

Having an effective sexual harassment policy and training program will greatly increase the chance of avoiding liability under the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court.

Where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment decision, the employer may avoid liability by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm. “A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.”

The importance of the affirmative defense was significantly increased by a U.S. Supreme Court’s decision in which the Court held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

A zero-tolerance harassment policy must fit the environment and employees:

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. The policy should be written in plain English, so that all employees regardless of their educational level or background can understand it … [a] policy should include a clear and precise definition of unlawful harassment so that employees know what type of conduct is prohibited by the policy and will be able to recognize that conduct should it occur.

Accordingly, if the alleged harasser has supervisory authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense.

B. Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure.

(1) Write in simple English.

(2) Include a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.

(3) State the company’s “zero-tolerance” philosophy in the policy regarding all forms of harassment,

(4) Designate at least two specially trained managers who will be responsible for investigating harassment complaints for the company.

(5) Determine the complaint procedure that will be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders.

(6) Provide a “clear chain of communication,” allowing employees to step outside of the normal hierarchy in the event the supervisor is the harasser and consider having a toll-free number employees can call.

(7) State that employees who report prohibited conduct will be protected from retaliation.

(8) State that the employer will promptly investigate the matter in an objective and discrete manner.

(9) Provide the form of disciplinary action to which offenders can expect to be subjected.

(10) State that the employer will also take remedial action.

(11) Train your management employees and line employees on the policy and procedure.

(12) Have each employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received training on the harassment policy.

C. The Faragher/Ellerth Defense and Hawaii Law

Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against individuals in virtually all aspects of employment. However, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense.

Currently, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether tangible action is taken:

§12-46-109 Sexual harassment.

(a) Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when:

(1) Submission to that conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or

(2) Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; or

(3) That conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

(b) In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

(c) An employer shall be responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden, and regardless of whether the employer or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted in either a supervisory or agency capacity.

(d) With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisory employee of the harassment; however, an employee’s failure to give such notice may not be an affirmative defense.

D. Problem Areas for Employers

1. Failure to disseminate policy

2. Inadequate complaint procedure

3. Employer on notice of harassment

4. Failure to promptly investigate

5. Failure to take appropriate disciplinary action

6. Failure to apply it even-handedly

7. Failure to review and revise when necessary

8. Failure to provide training

E. Illinois Supreme Court Decision a Foreshadowing of Hawaii Law?

In a recent decision, the Illinois Supreme Court gave the HCRC direct support of the HCRC’s own interpretation of HRS Chapter 378.

The decision holds Illinois employers strictly liable for sexual harassment by any of their management or supervisory personnel, and, as noted by the dissent, “imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.”

The basis of the decision was the plain and ordinary meaning of the statute, which states that “an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”

According to the Court, the statute is unambiguous” and only excludes “nonemployees” and “nonmanagerial or nonsupervisory employees” from its strict liability standard. As such, the Court found “[t]here is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim.” The Court rejected the employer’s argument that federal case law should apply to the case.

II. The Importance of Conducting EEO Training

Of course, in Hawaii the HCRC has merely interpreted HRS Chapter 378’s statutory language to impose strict liability for supervisory harassment. Unlike the Illinois statute interpreted by the Illinois Supreme Court it is reasonable to argue that Hawaii statutory law is ambiguous and not straightforward.

Nevertheless, the HCRC is charged with the interpretation and enforcement of HRS Chapter 378 and it does not bode well for Hawaii employers that another state’s high court is willing to impose what some would consider harsh penalties on the employer defendant. Accordingly, employers in Hawaii should redouble its efforts to train supervisors AND employees regularly on preventing discrimination and harassment in the workplace. Training should include the consequences of violating company policy.

Training employees reduces the likelihood that inappropriate conduct will be engaged in or tolerated at a level that can create a hostile environment.

Second, in the event that inappropriate conduct takes place, employees who are offended will be substantially more likely to use the employer’s complaint procedure, thereby permitting the employer to remedy the situation and avoid having a lawsuit filed against it.

Lastly, training is a tool for prevention and reducing the potential of supervisory harassment.

A. Training as a Tool for Prevention

The EEOC’s Policy Guidance on Sexual Harassment states:

An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result. Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

The HCRC regulations state that “prevention is the best tool for the elimination of sexual harassment. Employers should affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring.” §12-46-109(g).

As part of its settlements against employers, the EEOC and HCRC have chosen mandatory training as one of its primary responses through the use of consent decrees requiring organizations to conduct training and ensure policy compliance.

In 2004, the California Legislature passed Assembly Bill 1825, requiring all employers with fifty or more employees to conduct compulsory sexual harassment training for all of its supervisory employees by January of 2006, thus supporting the EEOC and HCRC’s position that training and education is the best tool for prevention. Under the California law, the training must re-occur every two years, and all new supervisors brought in after the original round of training must go through the program within six months of their arrival.

Managers who are aware of the implications of sexual harassment may be less likely to take official action they realize will create vicarious liability for the organization – this may preserve the employer’s right to the Faragher/Ellerth affirmative defense in a case of constructive discharge. Further, managers who are aware of how to proceed with complaints from employees about harassment are more likely to intervene with an appropriate employer response thus making a stronger showing under the first prong of the Faragher/Ellerth affirmative defense.

Finally, as noted throughout this article training can be an effective tool to combat inappropriate behavior by supervisors and to reduce risks under state law-especially to the extent it is interpreted similar to the Illinois Supreme Court’s decision.

B. Training and the Faragher/Ellerth Defense

Conducting training will greatly increase the chance of avoiding liability under the Faragher/Ellerth affirmative defense. The importance of this defense was significantly increased by the Suders decision, which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

The training of rank and file employees should be documented and if it is to be conducted on a regular basis, can include a certification by the employee that he or she has not been subject to any policy violations since the last training.

C. Training and Damages Issues Under Hawaii Law

Generally, individuals cannot be found liable for violations under federal law. Under Hawaii law, however, courts may award unlimited punitive and compensatory damages.

Significantly, unlike under Title VII individuals can be held liable for violations of Hawaii’s Employment Practices Act. See HRS §378-1 (defining “employer” to include “any person”) and §378-2 (3) (making it unlawful for any “person” to “aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so.”).

Thus, training employees may alert them to the financial risks they take when they engage in behaviors prohibited by Hawaii law.

D. Training to Reduce Exposure to Punitive Damages

The U.S. Supreme has Court held that “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.'” Accordingly, compliance efforts are both necessary and sufficient to avoid liability for punitive damages.

If you are looking for cardsharing then upmaker . Always prepare before you make a choice. There is so much info about buy-gold at http://www.buy-gold.link

Employment – Discrimination – Victimisation – Three Step Procedure – Outside Time Limit

In the recent case of Mehta v University of London and others [2006], the applicant was a doctor who applied to the second respondent for medical training on 8th August 2003. The second respondent was a body within the University of London (the first respondent). On 6th October the applicant received a letter from the second respondent dated 2nd October. The letter stated that his application had been unsuccessful. The applicant claimed that he wrote back on 12th December to ask for detailed feedback as to why he had not been admitted to establish whether he had a legal claim against the respondents. He received no reply, and the second respondent claimed that no such letter was received.

The applicant’s original application was presented to the Employment Tribunal on 13th January 2004 – he claimed discrimination and victimisation. On 17th January the Employment Tribunal dismissed the claim orally on the ground that it had been presented after the three month time limit. The Employment Tribunal also said it would not be just and equitable to extend the time limit. In addition, at a full hearing on 4th March, it was considered whether the other claims made by the applicant should be struck out due to the Employment Tribunal not having jurisdiction to hear them. Eventually, at the full hearing, the Employment Tribunal decided against the applicant – who promptly stormed out of the room.

The respondents made an application for costs. The tribunal declined to consider the costs application in the absence of the applicant, and adjourned the case until 20th May. When the case came to be heard, one of the lay members who was present on 17th and 4th was absent, and the applicant was not happy to proceed with just two members.

A new lay member was appointed and the Employment Tribunal heard oral and written evidence from both sides, as well as a witness statements and oral evidence from the applicant.

The Employment Tribunal held that the costs of the hearings on the 4th and 20th were attributable to applicants unreasonable conduct in bringing his remaining claims which were both misconceived and unreasonable. The applicant appealed to the Employment Appeals Tribunal.

His appeal was dismissed for the following reasons:

* For the purposes of the three month time limit, time ran from the date of the act of discrimination or victimisation. The act which the applicant was relying on in bringing the claim was the failure by the respondent to shortlist him for a position on the training course. This occurred at the very latest by 6th October, when he received the letter rejecting him. As the original application was presented to the Employment Tribunal only on 13th January, the deadline had been missed and the Employment Tribunal had not erred in treating the application as being out of time.

* It was clear that the Employment Tribunal had considered not proceeding with the claim. They decided that in the interests of the overriding objective they should appoint a new lay member in order to dispose of the issues before them fairly and expeditiously. The new Employment Tribunal heard extensive and new submissions from the applicant. This meant it was not inappropriate for them to consider the issues of fact relating to the March hearing, despite the Employment Tribunal being made up of only two of the original three members.

© RT COOPERS, 2006. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

Business Product Idea

Oftentimes, we come across individuals in our life that have the desire to start a business yet do not have any ideas when it comes to the products they wish to offer. Whereas, there are only a few entrepreneurs today that have different kinds of product ideas. This is a rarity today as many people just tend to follow the common business product idea. For those that are interested in being unique in their career, there are some of the innovative ideas that one can use in order to become a unique entrepreneur:

1. In the market, there are literally a lot of simple products being offered by businesses of all sizes. You may have noticed that there are some products that you can change in terms of physical appearance, features or price. Make it a habit to identify products that you can improve and think about how you can sell that in your current market.

2. There are a lot of problems that are happening all around us all the time. Choose one of the simpler problems that a lot of people are complaining about and find a way that you can satisfy their needs through a product. Think of a way that you can create a product that will be their main solution to the problems they are facing in their day to day lives.

3. Keep a wary eye on the items in the market that are in-demand as you can start production of products that have similar features as these. Put them out in the market and see the reaction of prospect customers. A lot of people are going to purchase from your business if you provide products that are hot in today’s market which will earn you a lot of profit.

4. You can choose to get an old product and start improving it which you can present as a new one. If you have a product that was once popular but now has lost its taste, revise and update it necessarily in order to draw the same amount of demand as it usually had. This is a popular business product idea for entrepreneurs that are offering e-books for sale.

5. Send out market surveys and questionnaires in order to find out what innovative product ideas your customers have in mind which they can use in the future. There are a lot of creative customers out there that can provide viable products and all you need to do is to take advantage of their innovativeness. You can start creating a product that has a large demand in your market right away.

There are many products in today’s market that were once old products or improvements of their older versions. If you are looking for new product ideas for your business, you do not have to start all over again as all the resources you need are there. All an entrepreneur needs is the creativity on how they can improve or modify a business product idea into something new and unique.

Stress At Work Claims – An Employer’s Guide To Avoiding The Pitfalls

1. Prolonged stress built up over the course of time through exposure to an excessive workload, long working hours or the breakdown of a working relationship can go unnoticed until too late.

The question for employment/personal injury lawyers is when will an employer be liable for a psychiatric illness that is induced by workplace stress? The answer in legal terms is no different to the question of liability for any other injury: when the risk of injury, in this case a psychiatric illness, is foreseeable. Was it foreseeable that this particular employee would suffer a psychiatric illness and not just work-related stress?

SUTHERLAND v HATTON: THE 16 POINT PLAN

2. In Sutherland v Hatton 2002 IRLR 263 the Court of Appeal laid down guidelines as to how courts should deal with negligence claims made against employers by employees with psychiatric injuries.

3. The Court of Appeal stated that an employer will escape liability for an employee’s psychiatric injury unless it was reasonably foreseeable that the employee in question would suffer such an injury as a result of occupational stress. That of course is not a new principle.

4. The Court made it very clear that there are no occupations which are so intrinsically stressful that psychiatric injury is always reasonably foreseeable.

5. In the view of the Court the answer to the question of foreseeability will depend upon the relationship between the particular demands of a job and the particular characteristics of the employee concerned. Foreseeability is whether this kind of harm to this particular employee was reasonably foreseeable i.e. injury to health attributable to stress at work. The Court therefore set out and listed a number of factors which were relevant to the issue of foreseeability and these factors were split into two groups.

6. The first group related to the demands of the job and included the following considerations:-

o The nature and extent of the work done by the employee;

o Whether the employee’s workload is much greater than is normal for the kind of job which he or she performs;

o Whether the employee’s work is particularly intellectually or emotionally demanding;

o Whether demands being made of the employee are unreasonable when compared with the demands made of others in comparable jobs;

o Whether there are signs that others doing the same job are suffering harmful levels of stress;

o Whether there is an abnormal level of sickness absenteeism in the employees job or department.

7. The second group of factors reflected the view of the Court of Appeal that the most important question centres on what the employer knew, or ought reasonably to have known, about the circumstances of the individual employee in question. The Court stated that the following factors might be relevant:

o Whether there are signs from the employee of impending harm to health;

o Whether the employee has a particular problem or vulnerability;

o Whether the employee has already suffered from illness attributable to stress at work;

o Whether there have recently been frequent or prolonged absences that are uncharacteristic of the employee and whether there is reason to think that these are attributable to stress at work.

FACE VALUE

8. An employer will be entitled to assume that an employee can cope with the normal pressures of a job unless the employer knows of something specific about the job or the individual concerned that should make the employer consider the issue of psychiatric injury. The employer is not obliged to make intrusive enquiries and is generally entitled to take what he is told by his employees at face value.

DUTY TO TAKE REASONABLE STEPS

9. A duty to take steps only arises where signs that an employee might suffer psychiatric illness from stress at work are plain enough that any reasonable employer would realise that he should act.

10. The employer will only be in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk.

11. The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable (rather like the test for unfair dismissal); these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.

12. An employer can only be reasonably expected to take steps which are likely to do some good: the court is likely to need expert evidence on this (probably from a Consultant Psychiatrist or Occupational Health Consultant).

13. An employer who offers a confidential advice service including counselling or treatment is unlikely to be found in breach of duty except where he has been placing unreasonable demands on an individual where the risk of psychiatric injury was clear.

14. One step an employer is not obliged to take, even where that step would be the only reasonable and effective one available, is to demote or dismiss an employee in order to remove him or her from a stressful situation. In the view of the Court an employer will not be in breach of duty simply by allowing a willing employee to continue in his or her job.

Employment Law – Majrowski And Employers’ Liability For Psychiatric Illness

The Protection from Harassment Act 1997 makes harassment both a criminal and civil offence, it was intended to deal with the problem of stalking.

Section 1 – Prohibition of Harassment

A person must not pursue a course of conduct which:-

i) Amounts to harassment of another; and

ii) which he knows or ought to know amounts to harassment of another.

For the purposes of this section the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

Majrowski v Guy’s & St Thomas’s NHS Trust [2006] UKHL 34

This case was a claim brought by an employee under the 1997 Act against his employer in respect of alleged harassment at work. The employee argued that his manager had breached a duty placed upon her by the Act and that the employer should be held vicariously liable for that breach.

This was not a case which the employee could bring under any of the discrimination legislation. The allegations were of general bullying intimidation and harassment.

The Act clearly established a statutory tort and the Court of Appeal had to carefully consider whether an employer could be held vicariously liable for a statutory tort committed by one of its employees where the legislation in question does not specifically provide for such liability. On the basis that unless the statute in question directs otherwise or there is a good policy reason why the principle of vicarious liability should not apply, the Court of Appeal believed that there was no reason to reject the argument of the employee.

The Court of Appeal was prepared to accept that although it was generally understood that the 1997 Act had been introduced to deal with the problem of stalking, it was nevertheless an Act which dealt with the prohibition of harassment in a range of different situations, not just stalking.

The appellant NHS trust appealed against the decision ((2005) EWCA Civ 251, (2005) QB 848) that it was vicariously liable in damages to the respondent (M) under the Protection from Harassment Act 1997 s.3 for harassment committed by one of its employees in breach of s.1 of the Act. M, who had been employed by the trust, had alleged that his manager had harassed, bullied and intimidated him while acting in the course of her employment. An investigation by the trust had resulted in a finding that harassment had occurred. M had claimed against the trust for damages under s.3 of the Act based exclusively on the trust’s vicarious liability for its employee’s alleged breach of the statutory prohibition of harassment. The trust, relying on the phrase “damages may be awarded” in s.3 of the Act, submitted that the award of damages under that section was discretionary, and therefore harassment could not be equated with a common law tort. The trust also submitted that the Act was not aimed at the workplace but was a legislative response to the public order problem of stalking.

The House of Lords held that: (1) The principle of vicarious liability was not confined to common law torts, but was also applicable to equitable wrongs and breaches of statutory obligations. Unless statute expressly or impliedly indicated otherwise, vicarious liability was applicable where an employee committed a breach of a statutory obligation sounding in damages while acting in the course of his employment, Dubai Aluminium Co Ltd v Salaam (2002) UKHL 48 , (2003) 2 AC 366, Nicol v National Coal Board (1952) 102 LJ 357 and National Coal Board v England (1954) AC 403 applied, Harrison v National Coal Board (1951) AC 639 considered. An employer could be vicariously liable if the employee’s conduct was closely connected with the acts the employee was authorised to do and the conduct might fairly and properly be regarded as done by the employee in the course of her employment, Lister v Hesley Hall Ltd (2001) UKHL 22 , (2001) 2 WLR 1311 applied.
(2) The effect of s.3(1) was to render a breach of s.1 a wrong giving rise to the ordinary remedies the law provided for civil wrongs. The enabling language “may be awarded” was apt simply to extend or clarify the heads of damage or loss for which damages were recoverable.
(3) Neither the terms nor the practical effect of the Act indicated that Parliament intended to exclude the ordinary principle of vicarious liability. By s.3 Parliament had created a new cause of action, a new civil wrong, and damages were one of the remedies for that wrong. Parliament had added harassment to the list of civil wrongs because it considered the existing law provided insufficient protection for victims of harassment. The prospect of abuse in cases of alleged workplace harassment was not a good reason for excluding vicarious liability.
(4) Section 10 of the Act inserted a new section, s.18B, into the Prescription and Limitation (Scotland) Act 1973, which assumed that in Scotland an employer might be vicariously liable in damages to the victim of a course of conduct amounting to harassment in breach of the relevant provision of the 1997 Act. Parliament could not have intended that the position should be different in England.

Problems

The Act however presents an employee with hurdles to overcome if a claim is to be brought in this way. Firstly the 1997 Act prohibits only a “course of conduct” amounting to harassment, meaning that a single incident of harassment by an employee will not be sufficient to lead to liability.

Secondly, in order to succeed, a claimant must establish that harassment within the meaning of the Act has taken place. This means “alarming” the person or causing the person “distress” amongst other things.

Thirdly, vicarious liability will only be established where there is a sufficiently close connection between the harasser’s conduct and the nature of his or her duties, and where it is just and reasonable to hold the employer liable for the harasser’s actions.

This is obviously an area of law which is very much in its infancy. However there is possible cause for concern. An employee who brings a claim for damages in the Civil Court has two significant hurdles to clear. The first is that any injury was “foreseeable” and the second is that if the claim is based upon a mental injury that that must be a “recognised psychiatric disorder” requiring significant medical evidence.