Laura Garner and Susannah Barnett , of Mishcon de Reya explain the legal aspects of workplace bullying & harrassment
Harassment, bullying and discrimination in the workplace can significantly decrease productivity and, if not properly addressed, could lead to an employer being hit with a bill for expensive legal costs and potentially uncapped compensation.
This article looks at two regimes under which an employee can pursue an employer for harassment: in the employment tribunals under the anti-discrimination legislation, or in the civil courts under the Protection from Harassment Act.
CLAIMS FOR HARASSMENT UNDER THE DISCRIMINATION LEGISLATION
What is harassment?
The definition of harassment is unwanted conduct on the grounds of race, colour, nationality, religion, sex, sexual orientation, gender reassignment, marital status, age or disability which has the purpose or effect of violating the dignity of a person or of creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. Harassment may be persistent or an isolated incident and may be directed towards one or more individuals.
Harassment is not only unwanted physical conduct, assault or propositions. It may also include suggestive remarks, gestures, explicit pictures, offensive comments, inappropriate jokes, banter and gossip. It can also include isolation at work and exclusion from social activities. An employee may be personally liable if he or she subjects another employee to harassment. However, more worryingly for employers, the employer will be held vicariously liable for the employee’s conduct unless it can show that it took all reasonable steps to prevent it.
Compensation in a successful claim will include financial loss suffered by the employee (uncapped) as a result of the harassment and an award for injury to feelings. Where harassment has led to termination of the victim’s employment (most commonly in the form of constructive dismissal) and he or she has been unable to find new work, losses may be significant. In addition, compensation for injury to feelings will range from Ã‚Â£500 to Ã‚Â£25,000, depending on the severity of the harassment.
Harassment under the Sex Discrimination Act has different meaning
The definition of harassment under the Sex Discrimination Act was revised earlier this year to comply with EU law. The revised definition removes any element of causation and requires only that the harassment be “related to” the sex of the victim or any other person. This is now likely to cover cases where an employee has been offended not just by sexist remarks directed at them but also such remarks about another person. By way of example, under the old definition, if employee X made sexist comments about employee Y and employee Z took offence, employee Z would have no claim against employee X (or the employer) as the remarks were not “on the grounds of her sex”. However, under the revised definition employee Z will have a potential claim as the remarks were “related to the sex of the victim or that of another person”.
In addition, employers may now be liable for harassment of an employee by a third party (e.g. by a client) where such harassment happens in the course of the employee’s employment and the employer is aware that it has happened on at least two previous occasions.
CLAIMS UNDER THE PROTECTION FROM HARASSMENT ACT 1997
The Protection from Harassment Act provides employees who have been subjected to harassment with a potential “trump card” to use against both current and former employers. Harassment in this context includes alarming a person and causing that person distress.
The conduct must be objectively oppressive and unacceptable as opposed to merely unattractive or unreasonable, and must occur on at least two occasions. This is a much higher test than under the discrimination legislation.
On the other hand, the harassment does not need to be on any of the prohibited grounds (such as sex, race etc.). Another downside for the employer is that there is no defence – employers will be vicariously liable for harassment that occurs in the course of employment, no matter what steps they may have taken to prevent it. In addition, claims can be brought within six years of the act complained of (in contrast to the normal three month time limit under the anti-discrimination legislation). This may present evidential problems for employers; witnesses may not be traceable, the perpetrator may have moved on, documents may no longer be available and recollections of events may be hazy.
As with claims under the anti-discrimination legislation, damages may be awarded for financial loss suffered as a result of the harassment and may also include damages for anxiety. Unlike awards for injury to feelings, there are no set guidelines for the amount of anxiety awards.
PRECAUTIONS EMPLOYERS SHOULD TAKE
- Employers should put in place a robust and well-communicated policy that clearly articulates the organisation’s commitment to promoting dignity at work and its approach to harassment.
- The employer should ensure that proper reporting procedures are in place and support provided for victims.
- Employees should be trained on the policies and the policies should be regularly updated.
- Employers should ensure they act promptly, consistently and in accordance with their policy if any complaints of harassment are made.
By Laura Garner and Susannah Barnett
Mishcon de Reya