Employment E-Missive No.18 - The Protection From Harassment Act and Safeguards for Employers
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An Employment Law Commentary E-Mail
1) The Protection From Harassment Act and Safeguards for Employers
2) Age Discrimination and Vital Staff Training
3) Adjust or Pay Out in Disability Cases
4) Tackling Short Term Persistent Absences
By Charles Price, LLB.(hons) LLM, barrister
No5 Chambers,
Birmingham - Bristol - London
Telephone 0870 203 5555
Web www.no5.com
Web: www.charlesprice.net
Email:: cp@no5.com
The Protection from Harassment Act (PHA) 1997 Provides Another Option for Employees who Consider they Have Been Harassed at Work
Majrowski v Guy's and St Thomas's NHS Trust
Factual Background
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.
Nearly four years later, Mr Majrowski brought a claim under Section 3 of the Protection from Harassment Act 1997 against the Trust for distress, anxiety and consequential losses caused by the harassment he suffered. He made no claim against Mrs Freeman herself, nor did he make any claim against the Trust for negligence or breach of his contract of employment. For evidential and limitation reasons, his claim was based exclusively on the Trust's vicarious liability for Mrs Freeman's alleged breach of the statutory prohibition of harassment. Mrs Freeman, he said, had at all times acted in the course of her employment.
Court of Appeal
There were two issues for the Court of Appeal to decide: first, whether an employer could be vicariously liable for a breach of a statutory duty imposed only on its employee; and, secondly, whether an employer could be vicariously liable in civil law under S.3 of the Protection from Harassment Act 1997 for harassment in breach of S.1 of the Act committed by one of its employees in the course of his or her employment.
Submissions
The Trust submitted that the Act should be recognised as a public order measure directed mainly, though not exclusively, at stalking. It would therefore be inappropriate to import the Act into the workplace via the principle of vicarious liability.
On the issue of section 3, the Trust argued that in the absence of an express provision in the statute, or necessary construction of the statute, the general principle that an employer is not vicariously liable for an employee's breach of statutory duty should apply in the present case.
Counsel for Mr Majrowski submitted that, having regard to recent authorities: (1) it does not matter that the act in question may also constitute a statutory criminal offence; Section 3(1) provides:
'An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question'.
(2) an employer is vicariously liable where an employee's unlawful act in the course of employment is sufficiently closely connected with the employer's business; (3) there is no good reason of principle or policy to distinguish between statutory and common law civil wrongs when applying that form of vicarious liability; and (4) unless the context and wording of the legislation creating the statutory tort in question compels otherwise, an employer should normally be vicariously liable for an employee's statutory tort committed in the course of his or her employment.
Judgment
The Court of Appeal allowed the appeal. The appeal was heard by the Court of Appeal, comprising Auld, May and Scott Baker LJ. On 16 March 2005, by a majority of two to one, Scott Baker LJ dissenting in part, The County court judge had erred in striking out an employee's claim against his employer under the Protection from Harassment Act 1997, arising out of alleged harassment by his manager, on the basis that an employer cannot be vicariously liable in civil law under section 3 of the 1997 Act for harassment in breach of section 1 of the Act committed by one of its employees in the course of his or her employment. The Trust appealed to the House of Lords
The House of Lords
Lord Nicholls of Birkenhead giving the leading opinion agreed with the Court of Appeal:
'Unless the statute expressly or impliedly indicates otherwise, the principle of vicarious liability is applicable where an employee commits a breach of a statutory obligation resulting in damages while acting in the course of his employment'.
In Lord Nicholls' opinion, the effect of section 3(1) is to render a breach of section 1 a wrong giving rise to the ordinary remedies the law provides for civil wrongs. This includes an entitlement to damages for any loss or damage sustained by a victim by reason of the wrong. He rejected the Trust's argument that such a conclusion was not what Parliament intended:
'Vicarious liability for an employee's harassment of another person, whether a fellow employee or not, will to some extent increase employers' burdens. That is clear. But, here again, this does not suffice to show Parliament intended to exclude the ordinary common law principle of vicarious liability. Parliament added harassment to the list of civil wrongs'.
The result is that Section 3 provides a civil remedy for what was previously considered criminal conduct under the Act and, in doing so, goes further than the common law in providing for damages for anxiety falling short of injury to health. Apart from the costs of pursuing a claim in the County court, there are significant advantages for employees, who enjoy a much more advantageous time limit and do not have to submit a grievance or a complaint.
Safeguards for Employers
There are however a number of safeguards for employers. First, there is the constraint provided in the Act itself, where, in section 1, it 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 engage the liability of his employer. Second, to succeed in claims under section 3 it is necessary for the claimants to establish to an objective standard at least that the conduct amounts to harassment, usually in the sense of it being likely to, 'alarm or cause the claimant distress', as provided by sections 1(2) and 7((2). Thirdly, there must be a sufficiently close connection between the harasser's conduct and the nature of their work related duties in order to demonstrate vicarious liability.
Majrowski v Guy's and St Thomas's NHS Trust 2005 ICR 977; IRLR 340
Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34
Age Discrimination and Vital Staff Training (As Appearing on HRZone.co.uk)
The Employment Equality (Age) Regulations 2006 SI 2006/1031 were made on 3rd April 2006 and came into force on 1st October 2006.The Irish introduced age discrimination provisions through the Employment Equality Act as far back as 1998 and since then, age discrimination cases have constituted 25 percent of all discrimination claims reaching a tribunal. With unlimited compensation being awarded by employment tribunals in discrimination cases and the number of general claims to employment tribunals increasing, businesses and practitioners in England and Wales have every reason to keep one eye the new law.
Under the new law, employers can be held liable for acts of employees who discriminate on grounds of age and so training staff about what is acceptable under the Regulations is vital. Prudent employers will, no doubt take advice on how to introduce age neutral recruitment, retirement and promotion policies but it is in areas such as, instructing staff as to what constitutes 'harassment on the grounds of age' where the role of the trainer will be crucial.
Harassment
The Regulations* 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'. The same law also spells out that conduct will only be regarded as having the effect of creating a 'hostile environment', etc if, having regard to all the circumstances including in particular the perception of the complainant, it should reasonably be considered as having that effect.
The Regulations require that this conduct is 'unwanted'. In other words, it is important for the complainant to make sure that they make it clear that the behaviour in question is unwanted. Harassment of an older person does not necessarily constitute age harassment unless the reason for the conduct in question must be the person's age in order for harassment to occur.
The Regulations further provide that employers are liable for acts of their workers which are unlawful under the Regulations, unless they have taken reasonable steps to prevent them. It is important therefore for employers to investigate and initiate the disciplinary process if necessary, when complaints are made. Examples of comments, which have been deemed to constitute harassment on the grounds of age in other countries are:
"only a young foolish girl" (Ireland)
'Old git,' "Uncle Mitty," and 'grumpy' comments (United States).
A diary containing 'old git' comments or 'amusing' old age birthday cards, is likely to establish a 'prima facie' case of less favourable treatment on grounds of age on grounds of a discriminatory atmosphere at work. In determining whether that conduct is discriminatory an employment tribunal will consider both objective aspects (does the conduct have the effect of violating a person's dignity or affect the environment?) and the subjective view of the complainant (did the complainant genuinely feel that their dignity was violated by the behaviour in question?). Training staff in what constitutes unacceptable behaviour such as subjecting workers to jokes relating to age and excluding older employees in social activities on the grounds of age is advisable and will help show a tribunal that the employer has done everything it can to prevent such behaviour. In case of future employment tribunal proceedings, the participant on such a course should sign a form to say that they have undertaken such training.
It is likely that we will see cases brought to an employment tribunal where an employer has withdrawn general training from older employees. It should be noted that staff training aimed at progressing the careers of workers can advance an employee in terms of his/her continued progression through the ranks of the company and therefore should be open to all workers regardless of age. Training aimed at progressing the careers of their workers can advance an employee in terms of his/her continued progression through the ranks of the company and therefore should be open to all workers regardless of age.
Training in order to allow an older worker to catch up if the action 'prevents or compensates for disadvantages linked to age suffered by persons of that age or age group doing that work or likely to take up that work' is permitted under the new law. Make sure all your personnel staff and line managers fully aware that the changes are coming in 2006.
In summary trainers should:
o Train staff so that they are fully aware of the behaviour that could be perceived as harassment, direct or indirect discrimination and victimisation on the grounds of age?
o Update policies dealing with bullying and harassment to ensure that they include harassment on age grounds and make it clear that such harassment is unlawful and that individuals can be held personally liable as well as, or instead of, the employer.
o Train your staff so that they are fully aware of the behaviour that could be perceived as harassment, direct or indirect discrimination and victimisation on the grounds of age?
o Always ensure that staff responsible for selecting and interviewing candidates are trained in equal opportunities and age discrimination.
o Make sure managers and supervisors do not introduce minimum or maximum age "cut-offs" simply because of assumptions about age groups, and that they are aware that age is not a barrier to career progression and promotion.
o Update policies dealing with bullying and harassment to ensure that they include harassment on age grounds and make it clear that such harassment is unlawful and that individuals can be held personally liable as well as, or instead of, the employer.
Links
The following useful link includes the following resources:
a.. precedent letters to employees
b.. an age-bias free application form
c.. all the official Acas and DTI guidance
http://www.agepositive.gov.uk/newsdetail.cfm?sectionID=44&newsid=678
For an online calculator which takes the new Age Discrimination law into account see:
http://www.emplaw.co.uk/researchfree-redirector.aspx?StartPage=data%2f200609241.htm&PageTitle=Redundancy%20Pay%20Calculator
For those looking for a blow by blow analysis my website has a more detailed look at the law.
www.charlesprice.net
*The Employment Equality (Age) Regulations 2006 SI 2006/1031 were made on 3rd April 2006 and came into force on 1st October 2006. For a full text see:
www.opsi.gov.uk
Adjust or Pay Out in Disability Cases
Commanding awards of unlimited compensation and bringing the worst kind of publicity, an adverse discrimination decision in an employment tribunal ought to be the worst nightmare of any employer and yet very few are fully equipped to protect themselves. The area where most employers fall foul is that of making reasonable adjustments for disabled people and this is the point of focus for the purposes of this article.
The various sections of the Disability Discrimination Act 1995 noted above impose a potentially onerous duty on employers to make reasonable adjustments to ensure that in any particular case a disabled job applicant or employee is not disadvantaged by reason of working practices or the physical features of premises. The adjustments required could be, for example, adjustments to working practices or to physical conditions or to provide alternative employment the Act provides a lengthy list of examples (DDA 1995 s.18B(2) and this is expanded on by the 'Disability Rights Commission employment Code of Practice'. Any employer would be wise to read the DRC Code, which although not enjoying the status of statutes still can be used in a tribunal as evidence of the correct way to behave.
In the modern UK, no employer can function properly without some external or internal professional source of medical and employment advice being available. An Occupational Health expert with a knowledge of the Disability Discrimination Act should be referred to when an employee complains of; feeling ill, has complained in the past (perhaps on her application form) of suffering from illness or is off sick with something more than trivial such as flu. The employer should certainly not don the cap of an 'internet quack' second guessing who is disabled under the Act and diagnosing illness without recourse to an expert. Under the new Act those with a clinically recognised mental illness or those with types of autism invisible to those without a trained eye can be deemed 'disabled'. Another example of a disability which might only be seen by the experts as falling under the Disability Discrimination Act was a feature in the case of Southampton City College v Randall* where a condition called 'functional dysphonia' meant that the Claimant was rendered unable to speak normally.
Once it has been determined that there is a potentially disabled employee the various sections of the Disability Discrimination Act 1995 impose a potentially onerous duty on employers to make reasonable adjustments to ensure that in any particular case a disabled job applicant or employee is not disadvantaged by reason of working practices or the physical features of premises. The adjustments required could be, for example, adjustments to working practices or to physical conditions or to provide alternative employment - the Act provides a lengthy list of examples (DDA 1995 s.18B(2) and this is expanded on by the Disability Rights Commission Employment Code of Practice*.
The danger of not treating this area of the law with a great deal of respect was highlighted in cases such as, The Prison Service v Beart, * where a prison officer was awarded £400,000 for her claim of disability discrimination under the Disability Discrimination Act. The applicant, who was employed as a full-time executive officer, suffered from depression after her position was changed to that of a part-time administrative officer. The recommendation of the occupational health consultant to relocate her to another posting was not acted on. The tribunal awarded compensation for future loss of earnings to be calculated from the time that she had been recommended for relocation until retirement.
It is unlawful discrimination not to comply with a duty to make 'reasonable adjustments' in relation to a disabled employee. The duty is to take such steps as it is reasonable, in all the circumstances of the case, to take. If the employer, however does not know, and could not reasonably be expected to know that the disabled person has a disability then the duty to make 'reasonable adjustments' does not apply (DDA 1995 s.4A(3)).
In my experience, there are so many potential adjustments proposed by the Act and Code an employer is well advised to do everything possible to accommodate the disabled employee. Once the case arrives at the tribunal door they are more often than not difficult to defend. It is particularly important that the adjustment should be put in place if suggested by Occupational Health. It is not for the employer to cherry pick unless the adjustment is 'unreasonable'.
It is worth looking at the Code to see what type of adjustments an employer is expected to make. A larger employer with plenty of resources at hand is generally expected to do more than a smaller firm. The following are some of the adjustments an employer is expected to make:
· making adjustments to premises;
· allocating some of the disabled person's duties to another person;
· transferring him to fill an existing vacancy;
· altering his working hours; e.g flexi-time
· assigning him to a different place of work;
· allowing him to be absent during working hours for rehabilitation, assessment or treatment;
· giving him, or arranging for him to be given, training;
· acquiring or modifying equipment;
· modifying instructions or reference manuals; e.g converting into Braille
· modifying procedures for testing or assessment;
· providing a reader or interpreter;
· providing supervision.
· Making sure staff are instructed to be helpful at all times.
Steps to Take:
1) Make sure you have a medical expert with knowledge of the DDA available.
2) Prevention is better than cure! If appropriate ask Occupational Health to examine all those who could potentially fall under the auspices of the DDA.
3) If an individual is seen to be potentially covered by the DDA as disabled (a purposive approach should always be taken) then the employer should consider all of the above reasonable adjustments and bend over backwards to accommodate 'reasonable' adjustments proposed by Occupational Health.
*The Disability Rights Commission and Code http://www.drc-gb.org/
*The Prison Service v Beart, (No 2): [2005] EWCA Civ 467
*Southampton City College v Randall. EAT, 2006 IRLR 18.
Tackling Persistent Short Term Absences
We have all experienced working in an office where morale has suffered due to the 'usual so and so' always 'taking sickies' but the financial costs to business of absentees is of far greater concern. A 'CBI' survey published in 1997, estimated that the total annual cost of absenteeism to business was £12 billion a year. Employers should however tread carefully when tackling the problem of persistent short term absences as not only will the over hasty boss face unfair dismissal claims but also discrimination claims and the unlimited compensation awards ascribed to them.
How a Tribunal can be Satisfied that a Fair Dismissal has Taken Place
An employer can only take so much of persistent absenteeism and will eventually dismiss but in order to dismiss fairly an employer must firstly identify a one of the potentially fair reasons listed in S.98(2) ER Act, namely capability, conduct, redundancy or contravention of a statutory enactment. Alternatively, the reason must be such as to fall within the residual category of 'some other substantial reason of a kind such as to justify the dismissal of an employee' (SOSR).
Both 'conduct' and 'capability' as reasons for dismissal have caused problems when applied to cases of dismissal for persistent short-term absences. Dismissal as a result of absences caused by genuine sickness or disability has generally been treated as falling under capability. Where there are unauthorised absences, the reason for dismissal is generally conduct.
However, in some case it has been stated that an employee who is frequently absent because of a genuine illness may be fairly dismissed for SOSR. The attendance procedure has been seen as a valid method of ensuring reliability of staff.
Secondly, the tribunal must consider whether the employer acted reasonably in dismissing for one of the above reasons. In dismissals for absenteeism, there is a range of reasonable responses open to an employer. If the decision to dismiss falls outside the band of reasonable responses, the dismissal will be unfair.
In 1997 ACAS published an advisory handbook, 'Discipline at Work', which gives assistance to tribunals in deciding whether the employer's response fall within the range of reasonable responses open to an employer and provides useful guidance to employers on how to handle persistent short-term absenteeism
It states that:
· absences should be investigated promptly and the employee asked to give an explanation
· where there is no medical evidence to support frequent self-certified absences, the employee should be asked to consult a doctor to establish whether medical treatment is necessary and whether the underlying reason for absence is work-related
· if after investigation it appears that there were no good medical reasons for the absences, the matter should be dealt with under the disciplinary procedure
· where absences arise from temporary domestic problems, the employer in deciding appropriate action should consider whether an improvement in attendance is likely
· in all cases the employee should be told what improvement in attendance is expected and warned of the likely consequences if this does not happen
· if there is no improvement, the employee's age, length of service and performance, the likelihood of a change in attendance, the availability of suitable alternative work and the effect of past and future absences on the business should all be taken into account in deciding appropriate action.
In the leading case of International Sports Co Ltd v Thomson (1980 IRLR 340) the Employment Appeals Tribunal outlined what is required where there is an unacceptable level of intermittent absence is:
· a fair review by the employer of the attendance record and the reasons for absence
· an opportunity for the employee to make representations
· appropriate warnings of dismissal if things do not improve.
If there is no adequate improvement in the attendance record, the EAT ruled that a dismissal will be fair.
Procedures to Assist the Employer:
Return-to-work interviews are invaluable to the employer in identifying why an employee has been away and will assist in working out a trigger point if action is to be taken. If the reason for absence is for personal reasons such as a relationship break up it will be more difficult for the employee to rely on that reason again and suggests that an improvement will occur. If the absentee identifies a drink or drugs problem then those respective policies may supersede any procedures on handling short-term absenteeism.
Reviewing the employee's record and reason for absence may bring to light an underlying medical condition. If it does, employers would be well advised to seek proper medical opinion in order to determine the extent and likely duration of the condition and whether, and if so how soon, treatment will bring the absenteeism down to an acceptable level. Particular consideration should be given to whether the condition amounts to a disability under the DD Act. With longer term absences a domiciliary visit by an Occupational Help expert is advisable and consultation with someone who has knowledge of the Disability Discrimination Act.
Impact of the Disability Discrimination Act
Where ill health is the reason for absence, employers must bear in mind the provisions of the DDA because an employee's illness may fall within the definition of a disability under the Act. In this context, persistent short-term absences may be the result of a recurring condition or symptomatic of an underlying condition that amounts to a disability.
The meaning of 'disability'
For the purposes of the Disability Discrimination Act a person has a disability if he or she has 'a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities' - S.1(1). The definition has been expanded through case law and schedules to the Act and for that reason an expert is required to give advice. The DDA identifies two ways in which an employer might discriminate against a disabled employee. By virtue of S.5(1), an employer discriminates against such an employee by treating him or her, for a reason related to his or her disability, less favourably than he treats employees to whom that reason does not apply. This is subject to the possibility that an employer may argue that the treatment was justified.
Reasonable Adjustments
Further, by virtue of S.5(2), an employer also discriminates against a disabled employee when he fails, without justification, to comply with the S.6 duty to make a reasonable adjustment to working arrangements that place the employee at a disadvantage. S.6(3) gives a number of examples of steps that it might be reasonable for an employer to take. Of particular relevance to sickness absences are:
· allocating some of the disabled person's duties to another person
· transferring the disabled person to fill an existing vacancy
· altering the disabled person's working hours, and
· allowing the disabled person to be absent during working hours for rehabilitation, assessment or treatment.
Many experienced lawyers have come unstuck because they have represented an employer who considered all of the above but the tribunal believed that more should have been done. Therefore, it is crucial to obtain expert advice if an individual is off work persistently and the root cause is a purported medical problem.
By Charles Price, barrister No5 Chambers
www.charlesprice.net
The author, Charles Price is an employment barrister of 7 years call.
The above article is for academic purposes only. Legal considerations must
be looked at in the light of the particular circumstances and it may be wise
to seek legal advice.