Published Articles: 2. Protection from Harassment Act Article 3. Age Discrimination and Vital Staff Training Article
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 3 months time limit but in the present case the Claim was brought in the County Court some 4 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 6' 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:
What Employers Should Do
The net result for employers is that they must tackle harassment and bullying at the grass roots.
ACAS offer 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 http://www.opsi.gov.uk/acts/acts1997/1997040.htm
ACAS http://www.acas.org.uk/index.aspx?articleid=797
Other Useful Links Commission for Racial Equality Disability Rights Commission Equal Opportunities Commission
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 ________________________________________________________________________________________________________________________
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 2005 ICR 977; IRLR 340
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, h is 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.
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; (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
Furthermore, it was held that an employer may be vicariously liable for a breach of statutory duty imposed on an employee. In the case of any statutory duty in respect of which a claimant seeks to establish an employer's vicarious liability for its employee's breach, it was held that the claimant will have to show that the statute in question does not exclude such liability, either expressly or on its proper construction, the latter guided where appropriate by considerations of policy.
In addition, Nicholls LJ giving the leading judgment stated that it is immaterial whether the conduct in respect of which a claimant seeks to hold an employer to account is a criminal offence as well as a civil breach or whether or not it is a common law or statutory duty.
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.
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.
by Charles Price
www.charlesprice.net
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Age Discrimination and Vital Staff Training
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: • 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? • 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. • 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? • Always ensure that staff responsible for selecting and interviewing candidates are trained in equal opportunities and age discrimination. • 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. • 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:
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:
For those looking for a blow by blow analysis my website has a more detailed look at the law.
*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:
The author, Charles Price is an employment barrister of 7 years call.
The above article is for academic purposes only. Legal considerations must
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