Setting the right tone

Employees in the UK are becoming more familiar with their right to maintain
dignity in the working environment. But what exactly does this broad concept
mean, and what should employers be doing about it? Katie Jackson-Turner and Joe
Glavina report

When an employee complains about his dignity at work – or more accurately
the lack of it – the complaint usually relates to some kind of harassment or
bullying. In general terms it is treatment the individual finds intimidating, hostile,
offensive or disturbing. Usually it is meted out intentionally towards an
individual but it can, equally, be a complaint relating to an unpleasant and
hostile working environment. For example, sexually explicit material which is
now readily available to many employees on the Internet can easily be
downloaded and disseminated in the workplace by e-mail or more conventional
means. Such material could be sent directly to an individual or circulated
indiscriminately. Either way it may form the basis of a complaint for which the
employer may be liable.

There is, of course, a raft of equal opportunities legislation in the UK
geared to addressing the issue of dignity at work. It is unlawful for employers
to treat a person less favourably on the ground of his or her sex (Sex
Discrimination Act 1975) or race (Race Relations Act 1976) or disability
(Disability Discrimination Act 1995). Indeed, there was even a specific piece
of legislation covering the subject – the Dignity at Work Bill – which was put
together by the MSF Union in 1997 and steered by Lord Monkswell through the
House of Lords in December 1997 and January 1998.

Attempts to introduce the Bill into the House of Commons, the first step
before a Bill can become law, was blocked by John Major’ s Conservative
Government in February 1997. Shortly afterwards a general election was
announced and the Dignity at Work Bill has been on hold ever since. However,
its failure to reach the statute books has not exactly left a hole in this
important area of social policy because it did little more than repeat and
highlight existing measures on equal opportunities.

One of the reasons for the significant increase in interest in this area
over recent years is the fact that there are no upper limits on awards made under
any of the discrimination statutes. The removal of the cap on compensation that
can be awarded for discrimination claims has led to more claims being brought
and has forced employers to take such claims more seriously. Employees are
increasingly aware of their right to dignity at work and are more willing to
take action to protect their rights. This is partly due to the media interest
in high-profile cases and reports of compensation running to hundreds of
thousands of pounds.

Harassment

Although the word "harassment" does not actually appear in any of
the anti-discrimination legislation, the Acts state that it is unlawful to
discriminate against an employee by subjecting him or her to a detriment. It
has been accepted by the courts that harassment, provided it is not
particularly minor, will constitute a detriment.

So while cases occasionally turn on whether the harassment in question is
sufficiently serious to amount to a detriment, normally the key question is
whether it amounts to discrimination. For the reasons already mentioned, the
number of discrimination claims being brought in the employment tribunals has
been rising steadily and is set to continue.

Harassment takes many forms, occurs on a variety of different grounds and
can be directed at one person or many people. An essential characteristic is
that it is unwanted by the recipient and that the recipient finds the conduct
offensive or unacceptable. Conduct becomes harassment if it is persisted in
once it has been made clear that it is regarded by the recipient as offensive,
although a single incident may amount to harassment if sufficiently serious. It
is the unwanted nature of the conduct which distinguishes harassment from
friendly behaviour which is welcome and mutual.

Employers’ defence?

All three discrimination Acts state that an employer is liable for any
unlawful discrimination carried out by its employees during the course of their
employment, unless the employer can show that it has taken such steps as were
reasonably practicable to prevent those acts. Therefore, an employer who does
not try to prevent harassment taking place may find that it is liable for the
damage done by a harassment campaign by one of its employees. In most cases
employers should be able to point to their equal opportunities policy as good
evidence of their attempts to combat harassment and other forms of
discrimination. Certainly, there should be a procedure in place for dealing
with allegations of harassment.

In some instances, tribunals have found dismissals to be unfair because the
employer did not follow its own procedure. There should be someone that
employees can approach if they are being harassed and they should be able to
feel that any complaint that they make will be dealt with fairly and promptly.
Managers should be trained so they can try to create a working environment free
from harassment. They should be able to recognise harassment and they should
know how to deal with the problem.

Dignity – a broad concept

Although harassment is perhaps the most obvious way a person’ s dignity at
work might be undermined, dignity at work is a broad concept which includes
areas such as the right to privacy and the right to respect for family life.
These are new and developing areas of employment law and difficult areas for
employers to manage.

Balancing the employee’ s right to privacy against the employer’s need to
ensure that, for example, its e-mail and Internet facilities are not being
misused is difficult. Legislation introduced in October last year (the Regulation
of Investigatory Powers Act 2000, and associated Regulations) prohibits
employers from snooping or eavesdropping on their employees’ telephone
conversations and e-mail exchanges unless in certain specific circumstances. In
addition under the Human Rights Act 1998 we all have a right to privacy.

While as a general rule, employees will not be able to sue their employer
directly under the HRA, an employer who has breached any of the new "human
rights" will have difficulty justifying its behaviour before an employment
tribunal. As a consequence, constructive dismissal claims which in the past
have been difficult to bring successfully are more likely to succeed.

Respect for family life was one of the themes the Labour Party campaigned on
in its election manifesto prior to being elected to Government. Since then we
have seen the introduction of a host of new legislation designed to protect the
right to respect for family life. For example, for the first time part-time
workers, fathers who want to take parental leave, and parents or carers who
need time off work to deal with domestic emergencies are directly protected by
the law. In addition maternity rights have been extended and will be further
extended in the future.

Personal injury

In serious cases of harassment and/or bullying the victim may suffer either
physical or psychiatric injury. As the Court of Appeal has recently confirmed,
in this type of case when an employment tribunal awards compensation for the
unlawful discrimination (uncapped), it also has jurisdiction to award damages
for both the physical and psychiatric injury.

This is an attractive course of action for employees because it means they
are free to pursue compensation for their personal injuries without having
recourse to the usual civil courts. This avoids the risk of having to pay the
employer’ s costs in the event of the action proving unsuccessful.

From the employer’ s point of view there is an important practical point in relation
to settling claims of this type. When it comes to settling claims, it is common
for employees’ advisers to ask for all personal injury claims to be
"carved out" of the compromise agreement. However, there is no reason
why personal injury claims of this type, brought on the back of a
discrimination claim, cannot be settled. n

Katie Jackson-Turner and Joe Glavina are solicitors in the employment
department of Addleshaw Booth & Co

Dignity, European style

Since the election of the Labour Government
the UK has become more willing to embrace European directives designed to
recognise and protect the right to dignity at work for all member states’
employees. Age discrimination in employment (December 2006), discrimination on
grounds of sexual orientation and discrimination on grounds of religion or
belief (December 2003) are to be barred by the new EU Equal Treatment Framework
Directive which represents the most important European discrimination
legislation in the last quarter of a century.

The Directive states that harassment shall be deemed to be a
form of discrimination "when unwanted conduct … takes place with the
purpose or effect of violating the dignity of a person and (our emphasis) of
creating an intimidating, hostile, degrading, humiliating or offensive
environment". This is a more stringent test than currently applies under
UK sex and race discrimination law, where only a showing of detrimental
treatment is required.

It means that when the Directive is implemented, those
complaining of harassment on the newly introduced grounds (sexual orientation,
age or religion) are likely to be better off bringing a complaint that they
were subjected to a detriment generally than by using any special provisions
relating to harassment.

Comments are closed.