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Avoiding harassment claims

02 September 2010

Employment tribunals have been faced with a surge in cases involving alleged harassment in the workplace - but they have not been inclined to accept such claims at face value. Solicitor Emilie Bennetts explains why.

THE ISSUE

Lately there have been many high-profile cases concerning claims of harassment.

This article looks at the approach of employment tribunals in dealing with such claims and whether this recent surge 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 effect of violating a person's dignity or creating an offensive, intimidating or hostile environment.

The question a tribunal must decide is whether the conduct was unwanted or not. In deciding this, the tribunal will consider the following factors:

• The perception by the victim of the conduct;
• The motive or intention of the alleged wrongdoer; and
• 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 time, they could be considered someone who would be unlikely to have "suffered in silence" if the conduct was unwanted.

Employment tribunals have been faced with a surge in cases involving alleged harassment in the workplace - but they have not been inclined to accept such claims at face value. Solicitor Emilie Bennetts explains why.
Context is key

The tribunal will seek to establish the context in which the alleged conduct occurred. It 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 publicised case, a City executive brought a claim of £4m against her financier boss, whom 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 documents presented. 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 been heard that a tribunal will adopt a common-sense approach towards such claims. It will look not only at the alleged wrongful conduct but also at wider evidence of the working relationship to establish whether the conduct complained of was unwanted in the specific working environment.

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 grounds 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 that tribunals have taken that 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.

CHECK LIST

• 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.

CONTACT

Emilie Bennetts,solicitor
Charles Russell

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