Charles Price

Employment E-Missive No.19 – How to Draft Pleadings Under The Protection From Harassment Act 1997

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An Employment Law Commentary E-Mail

1) How to Draft Pleadings Under the Protection From Harassment Act
2)The New Law on Victimisation and the burden of Proof
3) E-mail Snooping - When Can an Employer Monitor an Employee?

By Charles Price, LLB.(hons) LLM, barrister
No5 Chambers,
Birmingham - Bristol - London
Telephone 0870 203 5555

Web: www.charlesprice.net
Email:: cp@no5.com

1) How to Draft Pleadings Under the Protection From Harassment Act 1997
Many of us know the implications of the recently decided watershed case, Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34 where the Claimant successfully claimed against the Respondent for harassment by his manager, on the basis that an employer can be vicariously liable in civil law under section 3 of the PHA 1997, which had previously used only for criminal recourse. To my horror I was asked to draft civil pleadings under this Act without precedents and the usual assistance. Fortunately, Nick Hanning of ‘Reynolds Williams and Perrins Stevenson LLP’, the firm, which ran the original case, gave me some tips:

‘The said actions and/or behaviour were, and [name of harasser] knew or ought to have known them to be, oppressive, unreasonable and likely to cause the Claimant distress and/or anxiety and/or alarm and therefore amounted to a course of conduct of harassment contrary to Section 1 of the PHA for which the Defendant is vicariously liable’.

The campaign has been pursued persistently since early 2004 and has been oppressive, unacceptable and objectively calculated to punish the Claimant for comments made to the manager in July 2003 to encourage and aid former employees of the Claimant to damage the Claimant's business, to intimidate and upset the Claimant and to cause him distress and alarm. In the circumstances, it amounts to a course of conduct of harassment of the Claimant contrary to section 1 of the Protection from Harassment Act 1997.

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This recent case saw the Appellant fail in perversity arguments but of more importance to the employment lawyer the case involved a successful cross appeal where it was decided that in victimisation claims involving race the reverse burden of proof does not apply.

This recent judgment involved Ms Oyarce who commenced employment with the Respondent as a residential care worker. In June 1995 she took up a temporary position of acting group leader at another establishment at Oak House for a period of 18 months. In 1997 she applied for that group leader position permanently but was unsuccessful. At that time she made complaints in relation to the selection process.
In April 2003 she applied for the position of group leader and attended an interview with a panel including Gillian Green, manager and in June 2003 was informed that she had been unsuccessful in obtaining that position.

Subsequently the Claimant lodged a claim in the Employment Tribunal alleging race discrimination in relation to that failure. That complaint was withdrawn on 29th January 2004. In September 2003 she began working as acting group leader 3 days a week at an establishment known as Bridge Meadow and on 1 January 2004 began working full-time as acting group leader at Bridge Meadow.

On 7 May 2004 she applied for a position as a social worker with the Respondent, but in a different department at Vale Royal and under different immediate management. Her position as acting group leader at Bridge Meadow was due to come to an end on 1 July 2004 on which date she was due to return to her substantive post as residential worker at either Oak House or Redsands.

On 25 May 2004 a person known as Mike Westhead was given the position of acting group leader at Oak House/Redsands, a role the Claimant had not been considered for. This was the act of discrimination found by the Tribunal.

On 20 July 2004 she attended an interview for the position of social worker at Vale Royal. On 29 July she was offered that position and she accepted it immediately resigning from her post as residential social worker at Redsands on 31 July giving one month notice.

The Tribunal identified in paragraph 3 of its decision eight substantive allegations made by the Appellant. Of those eight the Tribunal found one of them wholly established and one of them only partially established. The one of which they found was wholly established was her complaint that she had not been considered for the temporary group leader post at Oak House. The comparator in question was Mike Westhead. The allegation was one of direct discrimination alternatively victimisation.

The appellant argued there was no evidence to support the material finding or alternatively the Tribunal self evidently made a fundamental mistake as to fact which permits the EAT to conclude that there has been an error of law.

The substantive allegation which the Tribunal declined to find in her favour was the submission that, because of the Respondent’s treatment, she resigned. The EAT stated that the tribunal were entitled to make that finding of fact.

Cross-Appeal – Did ET Misdirect itself on Burden of Proof on Victimisation Claim

The ET stated that the Respondent satisfied the reverse burden of proof in respect of on allegation of victimisation. The Council’s representative, Mr Gilroy QC gave ingenious submissions arguing that the burden of proof should not be the same for general discrimination and victimisation and that domestic and European legislation setting out the law on burden of proof deliberately distinguished between the two.

He claimed that Section 54A of the Race Relations Act 1976, which was inserted in 2003 pursuant to the United Kingdom’s obligation under the Directive, reads as follows:

“(1) This section applies where a complaint is presented under section 54 and the complaint is that the respondent –
(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in section 1(1B)(a),”

Section 54A(2) makes provisions for the reverse burden of proof. Section 54 of the Race Relations Act 1976 is the section which gives jurisdiction to the Employment Tribunal to hear a complaint by any person that another person –

(a) has committed an act against the complaint which is unlawful by virtue of part 2 of the Act.

Mr Gilroy argued that in order to find the ambit of the operation of Section 54A(1) one must look at Section 1(1B)(a), Section 1(1B)(a) refers to Part 2 of the Act. Part 2 of the Act begins with Section 4 and Section 4 provides:

“It is unlawful for a person in relation to employment by him at an establishment in Great Britain to discriminate against another to see by subjecting him to any other detriment.”

Section 3 of the Race Relations Act 1976 does not fall within Part 2 but falls within Part 1. Section 3(3) provides that:

(a) references to discrimination refer to any discrimination falling within Section 1 or 2; and

(b) references to racial discrimination refer to any discrimination falling within Section 1,
and related expressions shall be construed accordingly.”

Section 1 concerns racial discrimination and it provides, so far as is relevant, as follows:
“1. (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if –

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons (which is direct discrimination)

Section 2 provides for discrimination by way of victimisation, in so far as is relevant, as follows:

(1)            A person discriminates against another person in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –
(a)       brought proceedings against the discriminator or any other person under this Act; or
(b)       given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or
(c)        otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or
(d)       alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2)            Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.”

Mr Gilroy asserted that the crucial words of Section 54A(1) are the requirement that the complaint is that the Respondent “has committed an act of discrimination on grounds of race or national origins”. That being so it relates solely to discrimination under Section 1 and does not apply to discrimination under Section 2 which is discrimination by way of victimisation. Mr Gilroy averred that the reference to discrimination being unlawful by virtue of any provision referred to in Section 1(1B)(a), that is to say Part 2 discrimination in the employment field, is limited by the words “discrimination on grounds of race” and therefore, by reason of Section 3(3), is limited to discrimination falling within Section 1.

He claimed that there is a clear distinction under the statutory scheme provided by the Race Relations Act 1976 between discrimination on grounds of race, under Section 1, where the statutory reverse burden of proof applies and discrimination by way of victimisation, which is not discrimination on grounds of race but is discrimination in respect of a person doing a protected act, to which the reverse burden does not apply.

Mr Gilroy acknowledged that as the statute in question relates to anti- discrimination legislation and derives from the European Directive there is an obligation on domestic courts to construe it purposively. Thus, if it were clear that the Directive did require the United Kingdom to apply a reverse burden of proof in cases of victimisation then the court should strive, in so far as it properly could, to construe the provisions consistent with that European legislative intention.

However, he pointed out that the Directive points to the distinction as, apparently, being deliberate. The Council Directive 2000/43/EC by Article 1 states its purpose: to lay down a framework outlawing discrimination on the grounds of racial or ethnic origin with a view to put into effect in the Member States the principle of equal treatment. Article 2 sets out the concept of discrimination and subparagraph (1) reads:

“(1) for the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin.”

Article 8 falls within Chapter 2 which deals with remedies and enforcement and is entitled “Burden of Proof”. It reads:

“1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”

Article 8(2) provides that paragraph 1 should not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.

“Member States shall introduce into their national legal systems such measures as are necessary to protect individuals from any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment.”

Mr Gilroy outlined that the Directive is specific and explicit. Article 8 on ‘Burden of Proof’ refers back to the principle of equal treatment based on racial or ethnic origin. Article 9, by contrast, deals with victimisation and concerns the adverse consequences as a reaction to a complaint being made with a view to enforcing compliance with the principle of equal treatment.

Ms Plimmer for the Appellant responding to this cross-appeal sought to argue that the proper construction, applying conventional rules of construction, did involve that Section 54A applies to discrimination on the grounds of victimisation but, the EAT did not agree with that construction. From this she sought to argue that there was a single concept of discrimination which embraced direct/indirect discrimination and discrimination by way of victimisation and that giving effect in the United Kingdom domestic law to the principle under Article 8 would derogate from the level of protection given by UK domestic law by creating a two tier system of discrimination direct and indirect discrimination where the reverse burden of proof applies; and discrimination by way of victimisation where the conventional burden of proof applies.

‘There has been an apparently deliberate attempt to distinguish between discrimination on grounds of race, and victimisation in that the reverse burden applies to the former but not to the latter. We cannot see our way clear to construing them otherwise. Therefore, with some degree of hesitation and disquiet, we have decided that Mr Gilroy’s contention is correct and that the Employment Tribunal did err in law in deciding the issue of victimisation by Gillian Green on the basis of the statutory reverse burden of proof rather than applying the common law approach to which we have already adverted’.

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3) E-mail Snooping - When Can an Employer Monitor an Employee? (as appeared on HRZone.co.uk)

We are all aware how e-mail has revolutionised the workplace; allowing people to work with more speed and from remote locations. E-mails carry the legal force of a contract and are often used as evidence in court and tribunal proceedings. The emergence of e-mail brings with it huge benefits but also huge risks if not managed responsibly. The introduction of a robust e-mail policy can stave off the potential elephant trap) but often an employer will want to monitor an employee to make sure that systems are being protected and that the employee is not guilty of misconduct. The law on this subject is complicated but there are common threads running through the various sources.

The Law
Various sources of law protect the e-mail user. I list a few of the sources below. One reoccurring theme amongst all of the statutes is that employees should be warned prior to having their emails monitored.

Human Rights Act 1998
This provides for the concept of privacy giving a 'right to respect for private and family life, home and correspondence'. The provision is directly enforceable against public sector employers, and all courts must now interpret existing legislation in relation to the Human Rights Act. In the case of, Halford v UK 1997 suggests that employees have a reasonable expectation of privacy in the workplace, and employers are recommended to provide workers with some means of making personal communications which are not subject to monitoring, for instance a staff telephone line or a system of sending private e-mails which will not be monitored.

Covert monitoring is likely to be unlawful unless undertaken for specific reasons as set out in the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 (see below). Employers should make sure workers know of any monitoring or recording of correspondence (which includes e-mails, use of Internet, telephone calls, faxes and so on).
Regulation of Investigatory Powers Act 2000
This Act covers the extent to which organisations can monitor or record communications at the point at which they enter or are being sent within the employer's telecommunications system, and applies to public and private communication networks. It gives the sender or recipient of a communication the right of action for damages against the employer for the unlawful interception of communications.

There are two areas where monitoring is not unlawful. These are:

The Information Commissioner - responsible for enforcement of the Data Protection Act - has published a code of practice to help employers comply with the provisions of the data Protection Act. The Employment Practices Code clarifies the Act in relation to processing of individual data, and the basis for monitoring and retention of email communications.

The code of practice Monitoring at work: an employer's guide states that any monitoring of emails should only be undertaken where:

What the Policy is Designed to Stop
There is no UK legislation specifically to protect those who may be suffering, or have suffered, from bullying or vindictive behaviour at work. This does not mean they have no legal protection. It does mean, however, that to get legal protection or redress they must be look to many parts of employment related law. The most relevant of those sources being:

When looking at the different sources of law for an easy definition of bullying one is hampered by ‘legalease’. The definition of harassment under for example, the Sex Discrimination Act 1975 is quite complicated for those with drafting concise and easy to follow policies in mind:

The principal part of SDA 1975 s.4A provides that a person subjects a woman to harassment if
"(a) on the ground of her sex, he engages in unwanted conduct that has the purpose or effect

(b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect

(c) on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b), he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct".

There is an easier route to follow however when creating an anti harassment and bullying policy. The Protection from Harassment Act 1997 The PHA 1997 does not define harassment but states that harassment of a person “includes causing the person alarm or distress”. This is an easy test for the employee to prove and is the yardstick for all employers trying to guide staff on avoiding conduct which could be construed as bullying or harassment.

The employees should be warned as to what can constitute bullying. Cases in employment tribunals have shown that a range of behaviour can constitute bullying or harassment:

Of course, the worst type of bullying and harassment should be expressly spelt out as instances of Gross Misconduct in the disciplinary policy.

This type of training will help prevent workers from behaving in a way that can be construed as bullying. Employers should be aware that it is an implied (un-written term) in all employment contracts that:

"the employer shall render reasonable support to an employee to ensure that the employee can carry out the duties of his job without harassment and disruption by fellow workers" Wigan Borough Council v Davies 1979 ICR 411.

In other words, the employee has a right not to be bullied in the workplace. Under the Protection from Harassment Act 1997 and other discrimination legislation compensation is unlimited and employers can often be held liable for the acts of their employers and so apart from wanting to be as fair as possible the employer has added motivation for introducing the correct training and policies to tackle bullying.

It is important that professional legal advice is sought when drafting policies and dealing with legal disputes.

By Charles Price, barrister No5 Chambers

www.charlesprice.net

The author, Charles Price is an employment barrister of 7 years call.
This e-missive is distributed to over 1000 employment
solicitors in England and Wales. Please Contact me if you have any comments.

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.