Employer liable for harassment

Canniffe v East Riding of Yorkshire Council EOR, 93 EAT

Canniffe brought a sex discrimination claim after suffering repeatedly from serious incidents of harassment, including sexual assault by K. The Council accepted it was vicariously liable for K’s conduct, but relied on the statutory defence that it had taken such steps as were reasonably practicable to prevent it occurring by having put in place a harassment policy which was drawn to all employees’ attention. The tribunal held that no improvement in the implementation of the policy would have prevented K’s conduct, and Canniffe’s claim was dismissed.

Canniffe appealed successfully. The EAT held that in establishing whether the statutory defence was available the tribunal should have first identified whether or not the Council had taken any steps at all to prevent K’s behaviour, and should then have gone on to consider whether the Council could have taken any further steps which were reasonably practicable irrespective of whether or not those steps would have prevented the harassment. A harassment policy in itself was not necessarily sufficient.


Employees entitled to protective award

Scotch Premier Meat Limited v Burns and others IDS Brief 669 EAT

In April 1998 SPM decided on two alternative solutions to resolve its financial difficulties: either the business would be sold as a going concern, or the site would be sold for development, which would result in 155 redundancies. At the end of April SPM offered all the employees voluntary redundancy, but omitted to mention the possible sale of the business. Some accepted voluntary redundancy, but those who did not were made redundant anyway two months later. All the employees successfully applied to the tribunal for a protective award because SPM had failed to comply with its statutory duty to consult, which arises when an employer proposes to dismiss as redundant more than 100 employees within a 90-day period.

The tribunal found that the two options (one of which would inevitably result in redundancies) were sufficient to constitute a “proposal of redundancy”. It also found that the first redundancies were not voluntary because SPM had failed to provide material information regarding the possible sale, which prevented the employees from making an informed choice. Accordingly all employees had been dismissed for redundancy. The EAT upheld the tribunal’s decision.

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