I am a HR Manager and have been made aware that one of our employees has been sexually harassing a colleague outside of the workplace. The aggrieved employee has not lodged a grievance, and we have no formal record of any alleged misconduct by the alleged perpetrator. Whilst everything is happening outside of the workplace, I am concerned about our duties as an employer. How do I handle it?

As you know, sexual harassment is dealt with by the Sex Discrimination (NI) Order 1976, which defines harassment as “unwanted conduct” relating to a person’s sex; “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature” which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment; or where a person is treated less favourably because they have rejected or submitted to such conduct. As an employer, you can be vicariously liable for harassment committed by your employee during the course of their employment.

Your first step is to make certain that the harassment has only occurred outside of work. Then, even if it has occurred outside of work, you will need to consider if it occurred “in the course of employment”, which would expose you to potential liability. For example, harassment may have occurred outside of the office and work hours at a work social event, using a work chat platform, or on a business trip. For example, if this employee harassed their colleague using their work Skype account, it could be a work matter, regardless of where or when they do so. You should consider this initial issue before proceeding.

If harassment has occurred in the course of employment, as an employer you will have a duty of care towards the alleged victim. This will necessitate an investigation, after which you may decide that you have to begin disciplinary proceedings against the alleged perpetrator, even if no complaint has been made against them. You may wish to have a confidential discussion with the alleged victim at the outset to explain the process you will follow and the decisions you may have to make. Before making any decisions, you will need to make sure you have sufficient evidence, which is reliable and more than simply hearsay.

If you establish that harassment has occurred outside of the course of employment, you should still consider your duties as an employer. Will issues arise within the workplace if the employees work in close proximity or come into contact? Are any other members of staff at risk? Is the harassment serious enough that you should contact the police? The first issue is more pertinent where the alleged perpetrator is their alleged victim’s line manager, or otherwise holds power over them, which could risk an act of harassment occurring within the workplace as a result of the previous harassment outside of it.

How you handle the situation will depend greatly on the evidence available to you. However, you should not do anything without first conducting a proper investigation or make decisions which you cannot support. Likewise, the measures available to you will depend on your size and resource – you may have the organisational capacity to simply move the alleged victim to another department or area where their contact with the alleged perpetrator is minimal. Check any relevant internal policies you have in place (such as your disciplinary, harassment or bullying policies) before reaching any decisions. Given your potential exposure to a Tribunal claim for sexual harassment, you should take legal advice on your options at the outset.