What should an employer do if an employee who works mostly on the road is harassed at a client location?
Question: What should an employer do if an employee who works mostly on the road is harassed by a client at the client’s location?
Answer: Employers have an obligation to provide their employees with a safe work environment free from bullying and harassment. This duty is not limited to the employer’s physical premises, but extends to other locations where employees perform their work.
In most Canadian jurisdictions, workplace bullying and harassment is addressed in workers’ compensation or occupational health and safety legislation. In British Columbia, for example, the Workers’ Compensation Act requires employers to establish a policy for the prevention of workplace bullying and harassment, and for the timely investigation and disposition of bullying and harassment complaints. Similarly, Ontario’s Occupational Health and Safety Act requires an employer to conduct an “appropriate” investigation in response to allegations of workplace harassment. On Jan. 1, 2021, the federal government also introduced significant obligations for federally regulated employers, who now must jointly develop and provide employees with a workplace harassment and violence prevention policy.
While an employer may not be able to control the actions of a client or other third party, the employer does have control over how it responds to bullying and harassment of its workers, regardless of where that conduct occurred. At a minimum, to prevent and deal with workplace bullying and harassment, employers should:
- Develop a comprehensive policy statement with respect to workplace bullying and harassment that meets the requirements of the governing legislation.
- Develop and implement procedures for workers to report incidents of workplace bullying and harassment, and for how the employer will investigate.
- Provide training to employees on bullying and harassment and the employer’s policy and procedures.
- Thoroughly investigate claims of bullying and harassment and provide a conclusive outcome to all parties involved.
Where an employee’s claim that they were harassed by a client at the client’s location is ultimately substantiated, the employer must take steps to protect their employee and prevent future occurrences. These steps will depend on the individual circumstances of each case, and could include such initiatives as:
- Rearranging the employee’s work so they are no longer exposed to contact with the client.
- Asking the client to take steps to protect the employee, such as disciplining their harassing employee.
- Refusing to conduct further business with the client until the client agrees to stop or prevent the harassing behaviour.
- In extreme cases, severing the business relationship with the client.
Failure to take appropriate steps may expose an employer to liability.
Employers also have an obligation under human rights laws to provide a workplace that is free from discrimination and harassment on grounds such as sex, race, age, physical disability, and mental disability. This legislation has been applied broadly, such that if an employee experiences discrimination or harassment on a protected ground in the course of their employment, including from a person who is not the employer or a fellow employee, the employer is required to take steps to prevent its continuation.
Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or [email protected].
