By Geoff Newman, Chief Executive, RecruitmentGenius.com
The recent allegations of Jimmy Savile’s predatory behaviour from some decades ago are shocking. While the police deal with an increasing number of complaints, questions are being asked about the BBC’s role in the matter. Did senior executives hear anything about sexual assaults? How far did the rumours go?
The independent inquiries set up the BBC will hopefully shed light on what its managers did or didn’t do. However, the question of liability continues to hang over the corporation. Victims and families are wondering if the BBC’s inaction failed to protect young people on its premises. Meanwhile, lawyers are warning that the BBC and the hospitals where Saville volunteered could face personal injury claims for psychological damage.
The whole matter is a severe and sobering lesson for employers everywhere. The principles of vicarious liability mean that employers can be liable for the actions or omissions of their employees if the acts or failure to act took place during their course of their employment.
You can imagine that this covers a wide range of circumstances. In addition to criminal activities, the behaviours that can be covered include bullying, harassment, libel, discrimination and negligence. While each individual case’s circumstances will dictate if there is potential liability, even a situation where the employee has acted without authorisation won’t necessarily protect the employer. Liability can hinge on whether the employer had led by example and established a culture of respect and honesty.
All employers should be able to demonstrate that they have the set the tone on acceptable behaviour and that they will act if misconduct takes place. If an employer learns of discrimination or harassment but does nothing about it, they could face a civil court action in the future if the continued actions cause damage to the wellbeing of an individual.
Imagine that a few employees in an office start to make homophobic jokes in front of a staff member who is homosexual. They may claim that that it’s all light-hearted banter but ongoing comments or an escalation in the tone of what is said could cause stress and perhaps even dread for the staff member who has to face them. If a manager observes that behaviour and does little to stop it, the employer could be found to be vicariously liable for all of the staff members’ actions, including the manager’s failure to prevent the harassment.
It’s also too easy to assume that employees will tell you if they witness inappropriate behaviour. If there’s anything to be learned from the history of disciplinary cases, it’s that employees tend to avoid sticking their heads above the parapet. They state that they thought someone else had disclosed the information or that they were afraid of not being believed or that they feared reprisals. If these comments have come up in any of your disciplinary cases, you are not protected well enough from the acts from your employees.
To minimise your company’s risks as far as vicarious liability is concerned, you should follow these important steps:
- Ensure you have robust recruitment processes when recruiting staff, particularly taking appropriate background checks.
- Review your policies on harassment, anti-bribery, discrimination, equal opportunities and whistleblowing. Are they crystal clear on what won’t be tolerated and what employees should do if they suspect wrongdoing?
- Training in anti-discriminatory practices shows your commitment to stamping out inappropriate behaviour. If it’s too expensive an option, make sure that you can demonstrate that the policies mentioned above are discussed on a regular basis.
- Show a positive attitude towards the questioning of practices and procedures. A culture of improvement and learning from mistakes reduces the risk of incidents being kept hidden.
- Take all misconduct investigations seriously. If you can display fairness and good judgement, your employees will respect you as an employer.
- Remember to include volunteers, agency staff and consultants who regularly act on your behalf. They may not be employees but, if they are seen to be acting in a similar role to those who are employed, you may be held liable for their actions as well.
- Check that you have the right public or professional liability insurance in place. Compensation on even one case of vicarious liability could be huge if the individual who suffered the wrongdoing has sustained severe physical or psychological damage and is unable to work.
This article was written by Geoff Newman from online recruitment agency RecruitmentGenius.com
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