Disturbing practice of ‘upskirting’ raises questions for employers

25th September 2017

Disturbing practice of ‘upskirting’ raises questions for employers

The scourge of ‘upskirting’ – photographing underneath a person’s clothing without their consent – could soon be illegal under new rules being considered by the Government.

But if you are an employer, what are your legal and moral responsibilities if a member of your staff falls victim to the disturbing practice?

Taking surreptitious pictures – often on crowded buses or trains – has been widely condemned as sexual harassment. One woman, Gina Martin, started an online campaign for upskirting to be criminalised after police declined to prosecute a man whom she accused of taking pictures of her on his phone at a music festival in Hyde Park in London this summer.

A change in the law in England and Wales seems long overdue. But what are the practical implications for employers?

The issue was highlighted at a school in Northern Ireland where a pupil took inappropriate images of the teaching staff. When prosecutors declined to take action and the boy was allowed to return to school, staff refused to teach him.

It raises questions about the duty of care employers have to their staff and concerns about how they could even investigate such a claim if, for example, images were taken on a smartphone belonging to a member of your staff.

Much will depend on how the victim has discovered they have been indecently photographed. For example, if images have been published online, there may be a way to discover who was responsible – but that could require court action and a court order.

If somebody else witnessed the photograph being taken, a victim will be reliant on them providing a statement, which they may be reluctant to give.

If the picture is saved to a person’s cloud account, then a court order might be necessary. And if the image was taken on a private phone, they may deny, refuse access to their phone or account and delete the picture – making an investigation very difficult.

While there are many complications, there are some sensible steps employers can take to protect staff. Creating practical policies around the use of phones and other devices in the workplace, while also ensuring thought is given as to how any allegations will be investigated is sound practice. A supportive and compassionate environment for those who raise complaints is also important.

How can Gotelee’s Employment Law solicitors help?

If you want expert advice on how you can protect your staff and adhere to your responsibilities as an employer, our Employment Law solicitors can help.

We can offer your business understanding, insight and practical legal advice to support and protect you and your workforce.

To find out more, call us on 01473 298126.

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