Barrister Charles Price warns employers to exercise caution when disciplining and dealing with staff due to the risk of harassment cases.
Employers beware! You can be sued for harassment.
Sometimes a case can be decided which has a silent but significant impact on how employers should conduct themselves. Recently an employee, Mr Majrowski, claimed that his departmental manager, Mrs Freeman, was rude and abusive to him in front of other staff. It was alleged that she was excessively critical of his time keeping and work, imposed unrealistic performance targets for him and threatened him with disciplinary action if he failed to meet them. Further, she isolated him by refusing to talk to him. This treatment, he said, was fuelled by homophobia: he is a gay man. On conclusion of an internal investigation by the NHS Trust, it was found that the claimant had been harassed.
Usually a claim would be brought to a tribunal for harassment within the stipulated three months time limit, but in the present case the claim was brought in the county court some four years later. The employee relied upon what was previously perceived as criminal law under the Protection from Harassment Act 1997. Mr Majrowski did not claim against his line manager, Mrs Freeman, but his employer, St Thomas’s NHS Trust. The Court of Appeal decided that an employer can be held responsible for harassment committed by one of its employees in the course of his or her employment. Further, that the Protection from Harassment Act 1997 does not only apply to criminal offences.
What constitutes harassment under the new law?
Other areas of law have a more stringent test for harassment such as, ‘Regulation six’ of the new Age Discrimination Regulations (introduced in October of this year) which define harassment as:
‘Unwanted conduct which has the purpose or effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person, where such conduct is done ‘on grounds of age’.
But to succeed in claims under the Protection from Harassment Act 1997 it is necessary to show that the behaviour in question was merely likely to ‘alarm or cause the claimant distress’. Employers should be aware that this test looks as if it will not be difficult to satisfy. In the recently well publicised case involving a woman, Ms Green, who sued her employers under the same law, part of her eventually successful claim was that her work colleagues ‘went silent on her’ or would blow raspberries when she walked past. She won £800,000. Part of the criteria under the new law is that a tribunal must be satisfied that the alleged offender must have known or ought to have known that he or she was harassing another person.
Employees are more likely to sue their employer under the new law as they enjoy a much more advantageous time limit and do not have to submit a grievance or a complaint. Employees who are bullied or harassed in the workplace are already able to bring a number of claims against their employer as follows:
- A personal injury claim in tort, where the employer has breached his duty of care and this has resulted in a personal injury to the employee.
- A breach of contract claim where the employer has breached their employee’s employment contract, for example a breach of the implied term of mutual trust and confidence.
- A claim for breach of statutory duty where an employer has breached a statutory duty such as a duty to provide a safe place and system of work, under the Health and Safety At Work etc Act 1974.
- A personal injury claim as part of an unlawful discrimination claim.
- Claims under discrimination legislation.
This recent decision, however, adds the Protection from Harassment Act claims to the list.
What employers should do
The net result for employers is that they must tackle harassment and bullying at the grass roots.
- Introduce harassment training and policies. It must be noted, however, that this is not good enough in isolation – All employees in the ‘Green’ case referred to above had received this training.
- Make sure that all employees know exactly what type of behaviour is not wanted in the workplace.
- Explain what can constitute harassment, bearing in mind the test above and law on age, religion, race, disability and sexual orientation.
- Make sure that grievance procedures are in place and that people know who to go to if they feel that they are being bullied or harassed.
- Investigate fully any complaints and invoke the disciplinary procedure, allowing the individual accused of harassment to have his or her full say. Try and separate the employees in question if no other solution is found.
ACAS offers a useful guide to types of unwanted behaviour but as yet have not taken into consideration the new law. The guide states that harassment can be an isolated incident but the Protection from Harassment Act prohibits ‘a course of conduct’ amounting to harassment. That is, it takes more than a single act of an employee in the course of his employment to fall foul of the new law.
Protection from Harassment Act 1997
Other Useful Links:
Commission for Racial Equality
Tackling racial discrimination and promoting racial equality
Tel 020 7939 0000
www.cre.gov.uk
Disability Rights Commission
Providing information and advice to disabled people and employers about their rights and duties
Tel 08457 622 633
www.drc-gb.org
Equal Opportunities Commission
Working to eliminate sex discrimination
Tel 08456 015 901
www.eoc.org.uk
A solicitor should always be consulted in case of a legal problem arising. This article is for academic purposes only.
Charles Price, barrister
No5 Chambers
www.charlesprice.net