UK: Harassment in the Employment Tribunal

Last Updated: 10 August 2010
Article by Emilie Bennetts and Lucy Lillywhite

The Issue

Recently there have been many high profile cases concerning claims of harassment. Many of these emanate from the city where employees earn large sums of money and generally seek to pursue higher compensation.

This article looks at the approach of the Employment Tribunals in dealing with claims involving issues of harassment and whether this recent surge in harassment complaints is indicative of attempts to use harassment to inflate other employment claims.

The Law

Harassment is a form of discrimination and involves unwanted conduct that has the purpose or effect of violating a person's dignity or creating an offensive, intimidating or hostile environment.

The Approach

The question the Tribunal must decide is whether, as a matter of fact, the conduct the individual complains of was unwanted or not. In deciding this question, the Tribunal will consider the following factors:

  • the perception by the victim of the conduct;
  • the motive or intention of the alleged wrongdoer;
  • the understanding of the alleged wrongdoer as to the victim's feelings.

Recent cases have also shown that the Tribunal will look at the character of the individual who alleges harassment and whether, if no complaint of the behaviour was made at the relevant time, they could be considered someone who would be unlikely to have "suffered in silence" if the conduct was unwanted.

Context is Key

Recent case law clearly demonstrates the approach the Tribunal adopts towards claims involving harassment and in particular, the importance of establishing the context in which the alleged conduct occurred. The Tribunal must decide whether the conduct could be considered simply in the spirit of the working relationship between the parties or evidence of serious and consistent abuse.

In a recent highly publicized case, a female city executive attempted to bring a claim of £4 million against her financier boss who she accused of bringing prostitutes to business meetings and alleged he had told her she "needed to work more and dress less". The Tribunal concluded that the Claimant's dramatic account was simply not corroborated by the overwhelming totality of the contemporaneous documents presented to the Tribunal. In addition, it found that the Claimant was "not a woman who would have suffered in silence" and that "if the jokes were unwanted she would have complained." As such, the Tribunal found that the conduct was not, in fact, unwanted.

It is apparent from the multitude of harassment cases that have recently been heard that the Tribunal will adopt a common-sense approach towards all claims concerning harassment. The Tribunal will look not only at the alleged wrongful conduct but also at the wider evidence of the working relationship to establish whether the conduct complained of was unwanted in the specific working environment both parties operated in.

Inflated Claims

The main remedy available to victims of harassment is compensation for loss that has been suffered as a result of the harassment and includes an award for injury to feelings. The effect of this, is that the normal cap for an unfair dismissal claim (currently £65,300) is removed and the damages that could be awarded are unlimited. It is well established that the maximum award for injury to feelings, £15,000 - £25,000, is applicable where there has been a lengthy campaign of discriminatory harassment on the ground of race or sex.

Because of this, it has been suggested that some Claimants are including an additional claim for harassment to inflate an otherwise straightforward unfair dismissal claim. Although this is of concern, it is apparent from the approach the Tribunal has taken towards claims of harassment, that any unfounded claims are likely to fall foul when considered in light of the wider employment context of those involved.

Expert Advice

It is important to remember that employers can be held vicariously liable for any acts of harassment committed by their employees in "the course of employment". It is therefore imperative that employers minimise the chance of any acts of harassment occurring in the workplace.

To-Do Checklist

  • have a workplace harassment prevention policy that clearly sets out what conduct is unacceptable;
  • offer training on issues of workplace harassment;
  • take all complaints of harassment seriously and investigate these promptly;
  • consider internal remedial action where instances of harassment are established – an employer's prompt and effective response is key to limiting liability.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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