Consider the following example.
Jennifer works as a clerk. She works in
a construction office on site with several other men. Due to family
responsibilities, her boss lets her come in an hour after the usual starting
times. The men frequently discuss sex and show each other pornographic pictures
to which she is inadvertently but inevitably exposed to. One day,
Jennifer has had enough and she tells the men that she thinks the pictures are
disgusting. The men do not stop but in addition have taken to teasing Jennifer,
saying things like " its just a bit o tits and arse, luv". The
men discuss the matter with some of the suppliers, some of whom in turn tease
her and call her a prude and use sexually explicit language with the employees
in her presence. Jennifer goes to her manager, Mike who tells her to “relax”
and that the men are just having a bit of fun. Jennifer threatens to take the
matter further. Mike angrily informs her that in that case he will impose the
normal starting time and she will have to come to work at the normal time.
What claims if any
does Jennifer have under the Equality Act, 2010? In examining the answer(s), I
will examine the basic principals relating to harassment and victimization
under the Equality Act
A preliminary
examination of the facts of this matter reveal a number of possible claims
against the employer. In summary these are:(1) a claim of vicarious liability
in respect of sexual harassment against the employer party, (2) a claim against
the employer in respect of harassment by a third party and (3) a claim of
victimization against the employer.
Harassment
The Equality Act 2010
(EA) prohibits three types of harassment. Harassment related to a protected
ground[i],
sexual harassment[ii]
and the so-called ‘quid pro quo’ harassment[iii]
.I believe that the facts in this matter may engage the first two types of
harassment.
Section 26(1) of the
EA defines harassment as:
‘Unwanted conduct
related to a protected ground that has the purpose or effect of violating a
person’s dignity and or creating a hostile and or intimidating working
environment’.
In order for our
claimant to show that she has been harassed in contravention of section 26(1),
she must show that (1) the conduct was unwanted, (2) it had the purpose or
effect of violating her dignity or that it created a hostile work environment
and (3) the conduct related to a protected characteristic[iv].
As regards sexual
harassment, the elements of liability are the same for harassment with the
exception that the third requirement is that the conduct must be of a sexual
nature.
The first question is
whether the conduct was unwanted. The primary issue is to what extent the test
is subjective or objective[v].
The case law under the pre-Equality Act (pre-EA) instruments[vi]
vacillates between a subjective and a more objective approach[vii].
The accepted approach is the approach taken by the EAT in Driskel v Peninsula Business Services[viii].
On this approach, the claimant has to show that she perceived the conduct as
unwelcome and, upon a consideration of all of the relevant factors, that the
perception was reasonable[ix].
However, I believe that there is a strong argument for approaching this
requirement under S 26 of the EA from a purely subjective point of view[x].
Therefore in establishing that the conduct is unwelcome the claimant may
succeed by showing that the conduct was uninvited and or that the claimant did
not willingly or voluntarily participate in the conduct[xi].
There are two types
of conduct to consider in this case. Firstly there is the conduct of her fellow
employees in exposing the claimant to pornographic material and secondly the
sexual banter or taunts. In the case of the former, the claimant explicitly
indicated that such conduct was unwanted and it persisted, notwithstanding her
protestations. This is a strong factor in favor of establishing this conduct
was clearly unwanted[xii],
even on the Driskel approach. There
is also authority for the displaying of pornographic material to constitute
unwanted conduct. In Moonsar v Fiveways
Express Transport Ltd[xiii]
the court held that the display of pornographic material in the presence of the
claimant, even if it was not directed at her, constituted conduct which
infringed her dignity. Such conduct is
also given as examples of harassment in various guides including the
explanatory notes to Equality Act and the ACAS guide on Bullying and
Harassment.
The second type of
misconduct relates to the sexual remarks. Here again, it is clear from the
facts that the claimant did not solicit, invite, or appreciate this sort of
conduct.
The fact that the
claimant did not complain about this conduct straightaway is not necessarily
fatal to her claim, because the courts recognise that it may be difficult to
complain about such sensitive issues.[xiv]
The next element of
liability is whether the purpose or the effect of the conduct was to violate
Jennifer’s dignity and or create a hostile work environment. Two types of
harassment must be distinguished. Firstly, harassment where the purpose is to humiliate
the claimant. The second is where the humiliation may be unintended,
nevertheless its effect is to humiliate the claimant[xv].
In the first type, it is clear that the claimant would have to show that the
alleged harassers intended their conduct to have the prohibited effect. It is
clear from the wording of section 26[xvi],
that in these cases a subjective test would be applicable[xvii].
The question therefore becomes whether this purpose can be inferred from all of
the relevant circumstances surrounding this case. It is not clear that it
could.
As regards the
“effect” cases, the test under the pre-EA cases is subjective-objective. The
test is whether upon a consideration of all the relevant factors including the
perception of the victim and the intention of the harasser, the conduct can
reasonably be considered to have the prohibited effect[xviii].
It is clear from the structure of section 26(4), that this test would be
applicable under the EA and indeed it seems that section 26 (4) mirrors the
test set out in Richmond Pharmacology[xix].
One of the defenses that could be raised by both the alleged harassers as well
as the employer party is that there was no malicious intent or that it was mere
banter that indeed, the claimant was hypersensitive. However, it is clear from
the wording of S26, that the presence of such intent is not necessary to prove
harassment[xx].
Moreover, banter can constitute harassment, if a reasonable person in the
position of the claimant would regard their conduct as having the prohibited
effect[xxi].
As discussed above, the decided case law supports the contention that both the
exposure to pornographic material and the sexual banter could be considered to
have this effect.[xxii]
Lastly, the claimant
must show that the conduct is ‘related to’ a prohibited ground and or was of a
‘sexual nature’.[xxiii].
It seems obvious that
the conduct in respect of the displaying of or inviting to view pornographic
material would constitute conduct of a sexual nature. The only questions that
should present some difficulty here are whether the conduct was unwanted or
whether the conduct could reasonably be said to have the prohibited effect.
These questions have already been dealt with.
Insofar as the
comments made by her fellow employees were of a sexual nature, these would also
constitute sexual harassment under S 26(2) of the EA 2010.[xxiv] However would Jennifer have a claim against
her employer? The claimant could institute claims for harassment and or
discrimination against his employer in respect of the conduct by his fellow employees[xxv]
and third party client’s[xxvi]
provided that a number of conditions are met.
Firstly, in order to
succeed in bringing a claim against the employer for harassment or
discrimination by the claimant’s fellow employees and or bus passengers, the
claimant must show that the conduct in question occurred during the ‘course of
employment’[xxvii].
Decided cases under the pre-EA have given definition to this term. It is trite
law that the term is to be given a wider meaning than that in tort and the term
is to be given its ‘natural meaning’[xxviii]. The employer would, upon an application of this
definition, be liable for any harassment or discrimination by another employee
or third party if it is related to the employment relationship[xxix].
However, an employer has a
defense. If he could show that he took all reasonable steps[xxx] or
reasonably practicable steps[xxxi] to
prevent the type of conduct in question or the specific conduct in question, he
would not be liable for this conduct[xxxii]. In
determining whether this defense could be established under the pre-EA
instruments, the tribunal had to ask if (1) the employer took any steps aimed
at preventing the conduct in question and (2) if so were there any further
reasonably practicable steps which the employer could have taken, which they
did not take to prevent the conduct in question[xxxiii]. In
looking at what reasonable steps the employer could have taken, the tribunal
should have regard to whether the likely effect of those steps were
proportionate to the effort and cost of implementing those steps[xxxiv]. The
case law also seems to support the contention that the Tribunal would also look
at any codes of good practice in assessing the reasonable steps defense. If the
employer could not show that he took any steps to prevent the conduct or there
were steps, which a reasonable employer would have taken and he did not, the
defense fails.
Applying
the law to the facts, it seems clear that the harassment took place ‘in the
course of employment[xxxv]’. The employer would be
liable for the conduct of the fellow employees because not only did he fail to
take any steps beforehand to prevent the conduct, even after he was aware of
that the conduct was taking place, he did not take any steps to prevent the
conduct in question. However, in the case of the conduct of the suppliers, the
employer has a further defense.
In order for the employer to be
liable, he must have known about at least two occasions on which this conduct
occurred and then still failed to act.[xxxvi]
What steps could the employer
have taken to avoid liability for harassment by fellow employees? The ACAS code provides good examples of what
the employer should do in order to prevent harassment. These are:
Management should adopt and
implement a policy. The policy should express senior managements view that
Harassment will not be tolerated, giving examples of Harassment, set out
guidelines as to what action will be taken by management against those who
harass other employees and set out the procedure to be followed in reporting
and investigating instances of harassment.
The policy should also stipulate that harassment by third parties such
as visitors, suppliers or clients is also unacceptable.
A clear protocol or procedure
regarding the reporting of and investigation of harassment must be established.
The procedure should provide for an informal or confidential method of
resolving instances of harassment expeditiously, given its sensitive and potentially inflammatory nature.
The conduct of senior
management is paramount. The corporate culture should clearly discourage such
conduct.
Once a incidence of harassment
has been reported, action must be taken expeditiously. A failure to act when
there has been harassment is fatal in terms of warning of a claim for vicarious
liability for harassment.
Victimization
The EA 2010 provides protection
for employees against victimization by their employers[xxxvii].
Victimization is defined as subjecting a person to a detriment because they
have committed a protected act or the victimizer believes they have done or may
do so. The purpose of these provisions is to ensure that persons cannot be
dissuaded from exercising their statutory rights by way of threats of a
detriment.[xxxviii]
On a technical analysis of the
EA 2010, in order to prove that his employer or a fellow employee has
victimized him, our claimant would have to prove (1) that she was subjected to
a detriment[xxxix]
(2) that she did committed a protected act or that his ‘victimizer’ believed
that she has or will commit a protected act[xl] and (3)
that there was a causal connection between the detriment and the protected act[xli].
In St
Helens MBC[xlii],
the House of Lords adopted a broad purposive approach and suggested that you
should focus on the conduct in question and if such conduct could reasonably be
considered to have been intended to or had the effect of frustrating the
purpose of the anti-victimization provisions, such would constitute
victimization[xliii].
In determining whether there has been victimization, the court said that the
alleged victimizer must avoid doing anything that might make a reasonable
employee feel that she is being unduly pressurized to desist from a claim where
there has been a breach of the law[xliv].
On the facts, there is
victimization. The complaint to her boss clearly constitutes a protected act[xlv].
Changing the starting time, clearly
constitutes detrimental treatment[xlvi]. The
difficult questions here are, firstly, whether the threat of a detriment
constitutes victimization and, secondly, whether there is a causal link between
the protected act and the threatened detriment. On the approach in St Helens v Derbyshire[xlvii],
a threat of a detriment where a reasonable person would consider that the
purpose of the threat is to dissuade him or her from continuing with his
complaint of harassment or discrimination against his fellow employees would
constitute victimization. It is no
longer a defense to claim that the employer’s conduct was honest and
reasonable.[xlviii]
Provided that the claimant
could satisfy the elements of the cause of action for harassment and or
discrimination and or victimization against his employer, the question becomes
what relief he would be entitled to.
Relief.
What can our claimant claim if
she can prove harassment and or victimization?
Firstly the Tribunal may award
damages[xlix]. Tort
principles apply[l].
Our claimant may be awarded damages to the extent that it would place in her in
a position that she would have been if she had not been subjected to the
conduct in question.[li] Thus if
she leaves the employer because of the conduct, she may claim for a future loss
of earnings[lii].
The tribunal may also award damages for non-pecuniary injuries. If the claimant suffered stress and or
anxiety because of the conduct in question ,the tribunal may award compensation
for this type of non-pecuniary loss[liii]. The
claimant may also have a claim for ‘injury to feelings’ because of the conduct.[liv]. The requirement as with psychiatric
injury, is that a causal nexus must be established between the conduct and the
‘injury to feelings[lv]’. The
claimant may also be awarded aggravated damages in the light of victimization,
if victimization is proved.[lvi]
Secondly the Tribunal may also
grant other types of relief, such as a declaratory order[lvii]. It
may also make a recommendation as to what the employer should do, such as to
take action to stop the harassment in question and or put into place policies
to prevent such conduct in the future[lviii].
It should also be borne in mind
that a failure to prevent and or deal properly with allegations of harassment
and or victimization may also result in an employee resigning and claiming
unfair dismissal.
[i] Equality Act 2010 S 26(1)
[ii] Equality Act 2010 S 26(2)
[iii] Equality Act 2010 S 26 (3)
[iv] In Richmond Pharmacology v Dhaliwal UKEAT/458/08, [2009] IRLR 336
(EAT) at paragraphs 9-11, the court said that, in evaluating whether there has
been harassment, the tribunal must apply their minds to the following
questions, whether there has been unwanted conduct, whether the conduct
infringed the claimant’s dignity or created a hostile work environment and
whether the conduct was on the grounds of a protected characteristic. This
approach to analyzing the elements of liability was most recently confirmed by
the Court of Appeal in Grant v HM Land
Registry [2011] EWCA (CA (civ)) 769 at page 728. Although, S 26(1) of the
Equality Act 2010 differs materially from its predecessors in that ‘on the
grounds of’ have been replaced to ‘related to’, the Richmond Pharmacology approach is still applicable by merely
adapting the third requirement, to read whether the conduct related to a
protected ground
[v] See Connolly, M Discrimination Law (1st Ed
Sweet & Maxwell London) at 5-011-5-013
[vi] I refer here to both
primary legislation as well as Statutory Instruments (delegated legislation)
[vii] See Connolly, M Discrimination Law (1st Ed
Sweet & Maxwell London) at 5-011-5-013. Connolly cites Reed Bull v Stedman [1999] IRLR (EAT) 299 as an example of a
subjective approach and Driskel v
Peninsula Business Services [2000] IRLR (EAT) 151 as an objective approach.
[viii] [2000] IRLR (EAT) 151. This
test was accepted by Burton J at paragraph 33 in Equal Opportunities Commission v
Secretary of State for Trade and Industry [2007] EWHC 483 (Admin),[2007] 2 CMLR 49 as
being the preferred test
[ix] Driskel v Peninsula Business Services [2000] IRLR (EAT) at
paragraph 12 where Holland J quotes with approval the following dicta
‘The ultimate judgment, sexual discrimination or no, reflects
an objective assessment by the tribunal of all the facts. That said, amongst
the factors to be considered are the applicant's subjective perception of that
which is the subject of complaint and the understanding, motive and intention
of the alleged discriminator…The passage cited from the judgment of the US
Federal Appeal Court is germane. By contrast the facts may simply disclose
hypersensitivity on the part of the applicant to conduct which was reasonably
not perceived by the alleged discriminator as being to her detriment – no
finding of discrimination can then follow’
[x] The pre Equality Act 2010
case law seems to conflate the requirement that the conduct be unwanted with
the requirement that the purpose or the effect of the conduct violates the
claimant’s dignity. A perfect example of this is the Driskel judgment. In section 26, these two elements are split out
and it seems to me that the requirement that the conduct is unwanted merely
requires the conduct the conduct to be uninvited or that the victim did not
accept being treated in this way.
[xi] For example see Thomas Sanderson Blinds v Mr. S English
UKEAT/0316/10/JOJ where the EAT upheld the finding of the Tribunal that in
certain cases the homophobic comments did not constitute harassment on the
basis that English willingly participated in the banter. However, in the end
there may not be much of a difference in the application of these two
approaches, as someone’s state of mind more often than not is objectively
determined from the surrounding circumstances.
[xii] See Morison J in Reed and Bull Information Systems v Stedman
[1999] 299 (EAT) where it was said:
‘Provided
that any reasonable person would understand her to be rejecting the conduct of
which she was complaining, continuation of the conduct would generally be
regarded as harassment’
[xiii] UKEAT/0476/04/TM, [2005] IRLR
9 (EAT)
[xiv] See Driskel v Peninsula Business Services [2000] IRLR (EAT) as well as Moonsar v Fiveways Express Transport Ltd
UKEAT/0476/04/TM, [2005] IRLR 9 (EAT)
[xv] The distinction between
purpose and effect cases is made by the Court of Appeal in Grant v HM Land Registry [2011] EWCA (CA (civ)) in respect of the Employment
Equality (Sexual Orientation) Regulations 2003. However the wording of the
anti harassment provisions in respect of the requirement that the conduct had
the purpose or effect of infringing the claimants’’ dignity or creating a
hostile work environment is mirrored in S 26 of the Equality Act 2010. The use
of the words purpose or effect, clearly indicates that these two types of
harassment are contemplated by S 26 of the Equality Act 2010
[xvi] More particularly section
26(4) of the Equality Act 2010
[xvii] S 26 (4) of the Equality
Act 2010 states that in evaluating whether or not the conduct has the effect
referred to in S 26 (1)(b), the court has to consider inter alia, whether it is
reasonable for conduct to have that effect. It can therefore be argued that,
because S 26 applies an objective test to effect cases only, the purpose cases
are to be judged subjectively. The word purpose also suggests a subjective
approach.
[xviii] The
Court of Appeal in Grant v HM Land
Registry [2011] EWCA Civ 769, 2011 WL 933916 in confirming the test as set
out in Richmond Pharmacology [2009] I.C.R
764, I.R.L.R 336, endorsed the understanding set out by the House of Lords
in Shamoon v Chief Constable of the Royal
Ulster Constabulary [2003] UKHL 11, [2003] 2 All ER 26 that conduct which
amounts to discrimination or harassment must be detrimental to the claimant,
that is to say that the treatment or conduct must be of such a kind that a
reasonable worker may take the view that in all of the circumstances, it was to
his or her detriment. See paragraphs 9-15 of the judgment.
[xx] Section 26 (1)(b) says that
the conduct must have that purpose or effect. Clearly in cases where you rely
on effect, proving such intention is not necessary. See Richmond Pharmacology UKEAT 458/08. However, the court did say that
the presence or absence of such intent would be a factor to consider whether
the effect of the conduct judged reasonably was detrimental.
[xxi] Thomas Sanderson Blinds v Mr. S English UKEAT/0316/10/JOJ. See ‘Out
at Work’ IDS Brief 929, July 2011
[xxii] See note 12 above as well
as the Court of Appeal in Stephen English
v Thomas Sanderson Ltd, [2008] EWCA Civ 1421,[2009] 2 CMLR 18 (CA) and the
finding of the EAT in Thomas Sanderson
Blinds v Mr. S English UKEAT/0316/10/JOJ.
[xxiii] I am dealing with
harassment under section 26(1) and 26(2) at the same time. The only discernable
difference is that section 26(1) of the Equality Act 2010 deals with harassment
which is related to a prohibited ground and whereas section 26(2) of the
Equality Act 2010 which deals with harassment which is f a sexual nature or
sexual harassment.
[xxiv] See Connolly, M ‘Homophobic
Harassment where no one is gay’ CLJ (2009) 265 Commenting on the decision in Stephen English v Thomas Sanderson Ltd,
[2008] EWCA Civ 1421, [2009] 2 CMLR 18, Connolly comments that it is a mystery
why the claim was not for sexual harassment, because some of the homophobic
remarks consisted of sexual innuendo
[xxv] For Harassment claims see
section 109(1) read with section 40 and section 121(1)(a) of the Equality Act
2010
[xxvi] S 40(2) of the Equality Act
2010
[xxvii] S 109(1) of the Equality
Act in respect of the conduct by fellow employees and S 40(2)(a) of the
Equality Act in respect of the conduct of the bus passengers, who would no
doubt qualify as third parties.
. Here the court at page 265 said that:
‘The tribunals are free, and are indeed bound, to interpret the ordinary,
and readily understandable, words “in the course of his employment” in the
sense in which every layman would understand them. This is not to say that when
it comes to applying them to the infinite variety of circumstances which is
liable to occur in particular instances — within or without the workplace, in
or out of uniform, in or out of rest-breaks — all laymen would necessarily
agree as to the result. That is what makes their application so well suited to
decision by an industrial jury. The application of the phrase will be a
question of fact for each industrial tribunal to resolve, in the light of the
circumstances presented to it, with a mind unclouded by any parallels sought to
be drawn from the law of vicarious liability in tort.’
[xxix]
See Chief Constable of Lincolnshire Police v Stubbs
and Others
[1999] ICR 547 (EAT)
and Sidhu v Aerospace Composite
Technology Ltd [2001] ICR 167 (EAT).
[xxx] This applies in respect of
conduct by fellow employees by virtue of S 109 (4) of the Equality Act 2010
[xxxi] This would apply in respect
of conduct by third parties by virtue of S 40(2) of the Equality Act 2010
[xxxii] See S 109(4) of the
Equality Act 2010
[xxxiii]See Ms F Caspersz v Ministry of Defense UKEAT/0599/05/LA at paragraph 9 which cites with approval the
approach of the CA in Croft v Royal Mail
Group [2003] EWCA CIV 1045, [2003]
IRLR 592 (CA) and Cannife v East
Riding of Yorkshire Council [2000] IRLR
555 (CA)
[xxxiv] Croft v Royal Mail Group
[2003] IRLR 592 (CA)
[xxxv] The exposure to the
pornographic material and homophobic taunts took place in the workplace and
while the claimant was on duty.
[xxxvi] See section 40(2) of the
Equality Act 2010.
[xxxvii] See S 39(4) read together
with section 27 of the EA
[xxxviii] See Lord Nichols of
Birkenhead in Chief Constable of the West
Yorkshire Police v Khan [2001] UKHL 48,
[2001] ICR 1065 (HL) cited with approval by Lord Neuberger of Abbotsbury
in St Helens MBC v Derbyshire [2007]
UKHL 16, [2007] 3 All E.R 81 (HL) at paragraph 52, where he says that the
purpose of such provisions is to:
‘Ensure that persons are not penalized or prejudiced because
they have taken steps to exercise their statutory rights or intending to do so’
[xl] Section 27(1)(a) or (b)
[xli] That is to say, that the
protected act was a main or substantial reason for subjecting the victim to the
detriment but for the fact that the victim perpetrated the protected act or the
victimizer’s belief that he has or intends to commit a protected act. The use
of the term ‘because’ clearly imports a causal connection. See Smith, I and
Baker, A Smith and Wood’s Employment Law
I 10th ed (Oxford University Press, Oxford, 2011) page 304. See also
Nagarajan v London Regional Transport
[1999] ICR 877
[xliii] See note 41 particularly at
paragraphs 25-27 of the judgment
[xliv] See note 41 paragraph 27
[xlv] See section 27(2)(d) of the
Equality Act. The making of the complaint constitutes making an allegation that
she is being harassed in contravention of section 26. According to the wording
of S 27(2)(d), the allegation need not be express.
[xlvi] Such conduct would be in
breach of S 39(4) (a) and or (b) of Equality Act.
[xlvii] [2007] UKHL 16, [2007] 3
All ER 81
[xlviii] See the honest and
reasonable defense in Chief Constable of
West Yorkshire v Khan [2001] UKHL 48, [2001] 1 WLR 1947 (HL), which was
roundly rejected in St
Helens MBC v Derbyshire [2007] UKHL 16; [2007] 3 All
ER 81(HL)
[xlix] Section 124(2)(b) read with
section 124(6) and S 119 of the EA 2010
[l] See S 124(2)(b) read with S
124(6) and S 119(2)(a) of the EA 2010.
[li] Ministry of Defense v Cannock [1994] IRLR 509
(EAT) per Morison J at 517.
[lii] Credit
Agricole Corporate and Investment Bank v Wardle [2011] EWCA Civ 545
[liii] Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] IRLR
481, [1999] ICR 1170,(CA)Civ Div)) and See Harvey on Industrial Relations and Employment
Law
Division L 6 C ( c ) (iii)
[liv] Vento v Chief Constable of West
Yorkshire [2002] EWCA Civ 1871, [2003] ICR 318 (CA
(Civ Div)). The guidelines set out in Vento were recently
applied by the EAT in Fox v Ocean City Recruitment Ltd UKEAT/0035/11/JOJ for injury to feelings arising
as a result of sexual harassment.
[lvi] In Zaiwalla & Co, Mr. T Hodsdon v Ms J
Walia [2002] IRLR 697 (EAT), the EAT had to consider whether aggravated damages could be awarded in
respect of vexatious conduct in defending a claim of discrimination. In
deciding the question in the affirmative, the court here said that:
‘
If a respondent misconducts himself
in the defense of a discrimination case, it may amount to victimization of the
applicant in respect of the protected act of bringing the claim’
[lvii] S 124 (2)(a) of the
Equality Act 2010
[lviii] S 124(2) (c) of the
Equality Act 2010 and see 416 of Equality
Act 2010 Explanatory Notes Revisited Ed August 2010
