Former X-Factor winner Leona Lewis, was assaulted recently while she was carrying out a book signing event in London.
Ms Lewis was shocked, but fortunately did not suffer any serious harm, thanks to the prompt actions of security guards. Peter Kopwalczyk was later arrested, charged and sent for a psychiatric assessment.
Mr Kopwalczyk was not employed by the book store, but what would have been the situation if he had been a Waterstones employee? Under the doctrine of vicarious liability, an employer may be vicariously liable for negligent acts or omissions by his employee in the course of employment, whether or not such act or omission was specifically authorised by the employer.
To avoid vicarious liability, the employer will have to demonstrate either that the employee was not negligent (in that the employee was reasonably careful) or that the employee was acting in his own right rather than on the employer's business.
Such liability may arise in a variety of circumstances, including criminal acts by an employee. A big risk area is where an employee engages in unlawful harassment in the course of employment, whether to someone else within the company, or to a third party. Harassment is defined as unwanted language or behaviour which has the purpose or effect, either of violating an individual’s dignity, or creating an environment which is offensive, humiliating, degrading or intimidating. So what can employers do to protect themselves? To establish a defence against harassment, you must show that you have taken all such steps as are reasonably practicable to prevent the harassment.
You need not actually prevent an employee behaving inappropriately (which would be very difficult) but you must take such steps as you reasonably can to discourage such behaviour and be able to show that you have done so. A good start is to draft a policy, which will set out what the organisation requires. But just having a policy is not enough.
You may need to provide training so that employees understand what constitutes harassment and what is expected of them. And in the event of an incident, you must carry out a timely and thorough investigation. You also need to show that you have taken appropriate action.
Obviously, we hope that you never find yourself in this situation, but as an employer these days, you need to be prepared for every eventuality, however unlikely you may think its occurrence may be. Our book 101 tips for employers which covers this, and many other employment law topics, is currently on sale at half price – £21.00 + £2.99 p&p. If you would like any help in creating a policy and setting up a training programme, or need advice on an on-going situation of this nature give us a call.
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