Wednesday 20 December 2006

Majrowski as appearing on HRZone.co.uk

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:

A personal injury claim in tort, where the employer has breached his duty of care, and this has resulted in a personal injury to the employee.

A breach of contract claim where the employer has breached their employee's employment contract, for example a breach of the implied term of mutual trust and confidence.

A claim for breach of statutory duty where an employer has breached a statutory duty such as a duty to provide a safe place and system of work under the Health and Safety At Work etc Act 1974.

A personal injury claim as part of an unlawful discrimination claim.

Claims under discrimination legislation.
This recent decision, however adds the Protection from Harassment Act claims to the list.


What Employers Should Do

The net result for employers is that they must tackle harassment and bullying at the grass roots.

Introduce harassment training and policies. It must be noted, however that this is not good enough in isolation – all employees in the ‘Green’ case referred to above had received this training.

Make sure that all employees know exactly what type of behaviour is not wanted in the workplace.

Explain what can constitute harassment bearing in mind the test above and law on; age, religion, race, disability and sexual orientation.

Make sure that grievance procedures are in place and that people know who to go to if they feel that they are being bullied or harassed.

Investigate fully any complaints and invoke the disciplinary procedure, allowing the individual accused of harassment to have his/her full say. Try and separate the employees in question if no other solution is found.


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 EqualityTackling racial discrimination and promoting racial equalityTel 020 7939 0000www.cre.gov.uk
Disability Rights CommissionProviding information and advice to disabled people and employers about their rights and dutiesTel 08457 622 633www.drc-gb.org
Equal Opportunities CommissionWorking to eliminate sex discrimination Tel 08456 015 901www.eoc.org.uk

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

1st Blog is a Warning at Christmas

The following article will appear on my website www.charlesprice.net and has been partly written by Louise Westgate of Hugh James solicitors.


Employers Need Not Fear a Nightmare at Christmas


Charles Price, Employment Law Specialist and Barrister with No5 Chambers explains how employers can avoid the Christmas pitfalls.

No employer wants to be seen as Scrooge at Christmas but even the most Epicurean of bosses must be aware that there may be a price to pay for allowing employees to over indulge themselves even outside of work hours. This was most evident when in a recent case, an employer was ordered to pay compensation to an employee who had been dismissed for, fighting and abusing a senior manager after a heavy drinking session at an after hours office party. The employer’s heinous crime was to pay for a tab at a party which took place after working hours. The Tribunal deemed dismissal to be an unreasonably harsh sanction in the circumstances and therefore unfair.

It is not only the employees who do things at Christmas parties they might live to regret later. Employers should be wary of making promises of gargantuan pay rises made after one too many sherries, just in case the eager employer seeks to enforce such an agreement on the first day back in the office.

At alcohol fuelled parties, the chances of employees complaining that they have been harassed are more likely. ‘The Ghost of Christmas Past’ really could return to haunt the complacent employer as new law means that they can be held accountable for the acts of their employees for over four years in the past. For a harassment claim to succeed 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’ and ‘blew raspberries’ at her when she walked past. The employer in that case had to pay £800,000 in compensation after Mrs Green suffered 2 mental breakdowns as a result of the bullying.

Bosses should be aware that employees who are bullied or harassed in the workplace may also bring a number of claims against their employer for: personal injury, breach of contract and under discrimination legislation.

In general, the days of the boss permitting ‘Bob Scratchit’ limited time to leave the office at Christmas are thankfully behind us. Employers are generally lenient with those returning to work after a Christmas lunch but the company position on this should be made clear to all, if employees are to know their boundaries and the Company’s disciplinary policies are not to be dusted off. Furthermore, employers should make sure that all faiths are considered. A Muslim worker successfully argued at an employment tribunal that he had been treated less favourably on racial grounds when he was forbidden to have a day’s holiday to celebrate the festival of Eid. The fact that it was the busiest season for the company involved and the taking of all holidays had been cancelled, was rightfully deemed irrelevant.

It is clear that employers are in a precarious position at Christmas but they should not necessarily dread what others see as, the ‘season to be jolly’. By exercising firm but fair control employers can avoid the festive pitfalls. Employers are advised to introduce training in what constitutes harassment bearing in mind the law on; age, religion, race, disability and sexual orientation. Policies dealing with office bullies and grievances should be put in place and all complaints should be fully investigated. Lastly, sensible drinking should be encouraged bar tabs limited if ‘jingle bells are not to turn into alarm bells’.
By Charles Price , barrister
www.charlesprice.net
No5 Chambers
Birmingham – Bristol - London