Off the record: Will I be liable for discrimination and harassment in the workplace?

Annie Hayes

Sift

Editor

Off the record: Will I be liable for discrimination and harassment in the workplace?

By Annie Hayes

When it comes to harassment and discrimination in the workplace the UK courts are sending out a very clear message of zero-tolerance. Recent decisions from both the Court of Appeal and House of Lords have placed greater responsibility on both employers and individual managers to combat these types of acts and to secure a friendly working environment for everyone; Ranjit Dhindsa, employment partner, Reed Smith reports.

Bully for you
In May the Court of Appeal confirmed that a manager who encourages discrimination in the workplace, may be liable, together with their employer, for that discrimination and a tribunal may require the manager concerned to pay compensation to the victim. This was illustrated in the case of Miles v Gilbank when the Court of Appeal found the manager, Ms Miles, liable not only for her own discriminatory actions, but also those of other employees, as she was deemed to have encouraged the bullying of Ms Gilbank.

Ms Gilbank started in 1997 as a trainee hairdresser for a company of which Ms Miles was the majority shareholder. In February 2004, Ms Gilbank notified Ms Miles that she was pregnant, after which Ms Miles’ attitude towards Ms Gilbank changed drastically: she made numerous cutting comments to Ms Gilbank regarding her pregnancy and insisted that Ms Gilbank continue to administer bleach (a potential health hazard). She also refused Ms Gilbank time to take the snack and drink pauses recommended by her doctor or to permit Ms Gilbank’s colleagues to collect lunch for her.

Whenever Ms Gilbank tried to raise an issue concerning her treatment with the other managers of the salon, they emulated Ms Miles’ behaviour towards her.

Unsurprisingly, Ms Gilbank brought a claim for sex discrimination against both her employer and Ms Miles personally.

The Employment Tribunal found in favour of Ms Gilbank and awarded her the maximum sum of £25,000 for injury to feelings and a further £4,050 for personal injury and lost maternity pay, of which she had been deprived. Ms Miles and her employer were jointly liable for the award on the basis that Ms Miles had aided the discriminatory acts of the others and was actually the “controlling mind” of the employer.

The decision was upheld by the Employment Appeal Tribunal and the Court of Appeal.

In a further extension of potential legal remedies for harassment in the workplace, the House of Lords unanimously upheld the Court of Appeal’s decision that an employer may be vicariously liable under the Protection from Harassment Act 1997 (PHA) for harassment committed by an employee in the course of employment.

In Majrowski v Guy’s and St Thomas’ NHS Trust, an employee claimed that he was bullied, intimidated and harassed by his department manager, Mrs Freeman, on account of his homosexuality. Mr Majrowski claimed she was rude, abusive and excessively critical, refused to talk to him and set unrealistic targets. He claimed that her conduct amounted to harassment under the PHA, for which his employer was vicariously liable.

Although the PHA was introduced principally to deal with stalking, this case has conclusively extended the legislation to cover bullying and harassment in the workplace, making it clear that an employer can be vicariously liable for the actions of its employees that are deemed to be unlawful under the PHA.

This principle formed the basis for the decision in the recent high profile claim that Helen Green brought against Deutsche Bank: Ms Green, formerly a secretary with the bank, was awarded in excess of £600,000 following a finding that she had been subjected to a campaign of bullying by a number of female colleagues during the course of her employment, which had resulted in her suffering several breakdowns.

Employers’ beware
These cases have set precedents that are ominous for employers and for personnel in positions of authority, considerably extending the protection afforded to employees in the workplace from bullying and harassment.

Prior to Majrowski, employees would either have to demonstrate that they had suffered harassment on the basis of grounds covered by the UK’s anti-discrimination legislation or that they had suffered a personal injury due to their employer’s negligence in failing to deal with harassment or bullying in the workplace. Gilbank has confirmed the extent of personal liability that a manager could incur if they are either guilty of harassment or fail to stop or correctly address incidents of harassment on their watch.

The bottom line is that employers must ensure that they have appropriate policies and practices in place for dealing with all types of bullying and harassment in the workplace and that managers are properly trained on how to implement those policies and to deal with incidents, should they arise. There will be no excuses on the part of employers or managers who fail to address such problems swiftly, sensitively and effectively.

For further information please contact Ranjit at rdhindsa@reedsmith.com

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