There will also be a claim for harassment if an employer treats the employee less favourably due to the employee having rejected, or submitted to, either form of harassment described above. Employers are responsible for their employees' behaviour by virtue of employers’ vicarious liability, so Harry is likely to be liable for Ron’s treatment towards Sarah whilst they were at work unless Harry can show that he took adequate steps to prevent any harassment or discriminatory behaviour occurring. Harry, by virtue of being Sarah’s employer, had a duty to protect Sarah from harassment.
Employers should comply with the Equal Opportunities Code of Practice, which recommends that they take particular care to deal with complaints of harassment effectively. The Code suggests that there should be informal and formal procedures and employees should be given a choice as to which procedure they would prefer. As soon as Sarah reported the situation to Harry, he then had a duty to make sure that her complaint was investigated and appropriate action taken.
Sarah had the right to have her complaint taken seriously and not to be victimised as a result of reporting the harassment. Sarah could argue that she was victimised in being told that her services were no longer required if she can prove that this occurred as a result of her complaint of sexual harassment against Ron. It is likely that she will be able to prove this on a balance of probabilities, particularly if she can show that there have been no previous concerns about her work over the past 7 years of her employment with the firm.
There will be a burden on Sarah to prove, on a balance of probabilities, that she has been harassed in circumstances prohibited by the SDA 1975. The effect of s.63A of the SDA is that the Employment Tribunal must find harassment where the claimant proves facts from which the Tribunal could conclude - in the absence of an adequate explanation from the respondent - that the respondent has committed an act of harassment, unless the respondent proves that he did not harass the claimant, or is not to be treated as having harassed the claimant.
There are no set rules for employers on how to deal with complaints of sexual harassment or what actions employers must take. However, employers should put in place the necessary procedures, policies, training, discipline and monitoring to limit such risks. Harry will avoid liability if he shows he did all that was reasonable to prevent Ron’s conduct towards Sarah. When Sarah reported the situation to Harry’s attention, he had a legal duty to take action to investigate it and attempt to prevent it from happening again. Harry did not handle the situation relating to Sarah’s complaint of sexual harassment against Ron, or the subsequent investigation, satisfactorily and therefore Sarah will be able to make a claim before an Employment Tribunal, who will decide whether the steps taken by Harry in dealing with Sarah’s allegations were sufficient and reasonable. It is extremely unlikely that a Tribunal would regard Harry’s action to have fulfilled this requirement and hence, Sarah appears to have a strong claim.
Sarah may also be able to argue that she has a claim based upon direct sex discrimination by Harry. Such a claim will succeed if she can establish that, after complaining of sexual harassment, she was received less favourable treatment because of her sex than a man would have received.
In light of Harry’s apparent tendency to favour Ron, it is fair to assume that Ron (or other male employees) would not have been similarly dismissed in the event that he, or another male, made similar allegations against Sarah relating to sexual harassment. Therefore, Sarah also has a potential claim on this ground.
Sarah’s claim must be filed within three months of the date when Harry concluded his investigation into the incident. Therefore, we will need to take instructions from Sarah as to the date on which Harry claimed to have completed his investigation. The three month time limit within which to commence a claim will then run from this date. Sarah will initially need to establish a prima facie case of discrimination. The burden of proof will then shift to Harry who will need to prove that there was non-discriminatory reason for his conduct..
Sarah should be asked whether she recorded the incidents relating to Ron’s harassment towards her on a diarised basis, including times, dates, locations and witnesses. If so, she should let us have a copy of these records. We should also ask Sarah whether she knows of any other female employees were being sexually harassed, or otherwise, by Ron. It would be useful to know whether Sarah was a member of any employees’ union and whether she brought Ron’s conduct to their attention at any time. Additionally, Sarah should be asked whether has mentioned Ron’s treatment to the doctor at any time during the last 7 months, as such evidence may well substantiate a claim that her health has also been detrimentally affected by the sexual harassment that she has suffered.
In determining Sarah’s claim, the Tribunal will consider whether, in light of all the circumstance, the conduct of which Sarah complains should reasonably be considered as having the effect of causing her harassment.
If Sarah’s case is successful, she will granted an award to reflect what the Employment Tribunal considers “just and equitable” (s.65(1)). This may include compensation for both financial loss suffered by Sarah to date and loss of future wages suffered as a result of the conduct. It may also be possible Sarah to also claim an award for injury to her feelings on this basis (Essa v Laing (2003)). Unlike in unfair dismissal cases, there is no limit to the amount of compensation that may be awarded in discrimination cases.
2) Discrimination based on religious grounds
In December 2003, the Employment Equality (Religion or Belief) Regulations 2003 came into force. These prohibit discrimination and harassment in employment on the grounds of religion or belief. As an employee, Sarah had the right not to be treated less favourably than other employees on the basis of her religion or belief, or her perceived religion or belief (i.e. assuming – correctly or incorrectly – that someone has a particular religion or belief).
Harassment is unwanted conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment having regard to all the circumstances and the perception of the victim. Harry, by virtue of being Sarah’s employer, was required to protect her against such harassment such as Ron’s criticism of her belief in Christianity and her desire to wear a crucifix in the workplace
As above, it will be necessary to ask Sarah whether she kept a record of Ron’s behaviour towards her, and whether she reported his ongoing conduct to anyone else, such as a union or her doctor.
It is also unlawful to victimise someone because they have made or intend to make a complaint or allegation or have given or intend to give evidence in relation to a complaint of discrimination on the grounds of religion or belief. Sarah may be able to argue that she was victimised if she is able to establish on a balance of probabilities that her dismissal resulted from her complaint about Ron’s treatment of her on the grounds of her religion and religious beliefs.
Sarah will have three months to bring a claim in the Employment Tribunal, starting from the date of the last alleged act of discrimination or harassment. If successful in her claim, Sarah may be awarded such compensation as the Tribunal deems ‘just and equitable’.
3) Unfair dismissal
In addition to potential claims for harassment and discrimination on the grounds of her religion and sex, Sarah may also have a claim for unfair dismissal under the Employment Rights Act 1996. To make this claim, an employee must have one year’s service with their employer. This initial requirement is satisfied in Sarah’s case since she has been employed at the firm for 7 years. Additionally, there must have been a dismissal. This requirement is also satisfied; there is no doubt that Harry’s words over the telephone constituted a dismissal. Sarah is also under 65 and well below the usual retirement age in that employment sector and so also satisfies the age requirements for being able to bring a claim.
In order for Sarah’s dismissal to have been fair, Harry must have:
- had a valid reason for dismissing her, and
- acted reasonably in treating that reason as a sufficient reason for dismissing her (i.e. he must have complied with certain procedures).
Once Sarah has established that she has been dismissed and is eligible to bring an unfair dismissal claim, Harry will have to prove that Sarah’s dismissal was fair. To do this, he must show that the dismissal was for one of five permitted (“fair”) reasons (s.98, Employment Rights Act 1996). These are: capability, conduct, redundancy, illegality, and any other substantial reason.
Harry told Sarah that her services were “no longer required” and whilst he may therefore claim that Sarah’s position had become redundant, it is more likely that he will claim that the “fair” reason for her dismissal was due to her conduct (i.e. her alleged “pack of lies”). In relation to redundancy dismissals, an employer must adopt a fair basis on which to select for redundancy and warn and consult the employees affected. An employer should also consider whether there are any alternative vacancies before implementing redundancies. Therefore, even if Harry attempts to argue that Sarah’s dismissal was fair under the redundancy reason, he did not satisfy the requisite procedures. (It should be noted that even if Harry claims to have dismissed Sarah due to her position becoming redundant, she would be entitled to redundancy pay by virtue of having worked for the firm for over 2 years).
In relation to conduct dismissals, if formal action was necessary, Harry should have told Sarah what she had done wrong and given her a chance to explain himself. If, following this, disciplinary action was taken, there should have been a right of appeal against it. Disciplinary action need not mean dismissal. In most misconduct cases, an employee should receive warnings and be consulted before being dismissed, even where such consultation would not have affected the employer’s ultimate decision to dismiss (Polkey v A.E. Dayton Services Ltd (1987)). Harry has evidently not complied with such requirements and procedures.
If Harry is unable to show that Sarah’s dismissal was for one of these five permitted reasons, her dismissal will be held to be unfair.
Even if Harry dismissed Sarah for a perfectly valid reason, her dismissal may still constitute an unfair dismissal due to the way in which it was handled. Sarah will be able to claim that her dismissal was unfair on the basis that Harry did not follow proper procedures before dismissing her. Unless there are grounds for an instant dismissal in cases where the employee’s conduct amounted to gross misconduct (and there are no such grounds in this case), Harry must have followed proper dismissal and disciplinary procedures before dismissing Sarah. Under new statutory procedures implemented by the Employment Act 2002 and Employment Act 2002 (Dispute Resolution) Regulations 2004, the law required Harry to do the following as a minimum:
- Send Sarah a written statement, informing her why he wanted to dismiss or discipline her;
- Hold a meeting with Sarah to discuss the matter; and
- Hold an appeal meeting with Sarah if she wanted to appeal against his decision.
Harry should have made a final decision about what he planned to do only after a meeting with Sarah, or an appeal meeting (if she requested one). Harry was only entitled to give Sarah notice of dismissal after these procedures had been complied with. If these minimum procedures are not complied with by an employer, the dismissal may be regarded as ‘automatically unfair’. So even where the reason for the dismissal would appear to fall within one of the recognised categories, there must also have been “fairness of procedure”. The test here is whether Harry used a fair procedure and whether it was reasonable for him to finally decide to dismiss Sarah once the procedure had been carried out. In determining this, the Employment Tribunal will consider factors such as:
- Whether Sarah was given a fair hearing by Harry.
Sarah will have a strong case for arguing that she was not given a fair hearing by Harry. Even though she may have had the opportunity to put her case across during her initial meeting with him, she was not given a chance to respond after Harry’s ‘investigation’ before being dismissed.
- Whether both Sarah and Ron, as employees, were treated in the same way.
Again, this requirement does not appear to have been satisfied. Harry undertook his investigation and immediately dismissed Sarah afterwards, without giving her the chance to put her response to him. This demonstrates that Harry has believed Ron over Sarah, without even holding a meeting to hear from the two of them together.
- Whether Harry had given Sarah any warnings to Sarah before the dismissal.
It will be necessary to clarify this with Sarah, but Harry does not appear to have given any warning before dismissing Sarah.
- Whether Harry had considered Sarah’s overall performance as an employee.
Sarah had worked at the firm for seven years. It will be necessary to ask whether she had received positive appraisals for her work in the past. If so, this adds to the argument that her previous good work record had not been sufficiently taken into account by Harry before his decision to dismiss her.
- Whether Harry could have disciplined Sarah instead of dismissing her.
Whilst Sarah can argue that she should not have even been disciplined, the fact that she received an immediate dismissal as opposed to any disciplinary action, further demonstrates that fair procedures have not been complied with.
- Whether Sarah had an effective right of appeal against Harry’s decision.
In this situation, Sarah has had no such opportunity to appeal Harry’s decision.
- Whether the whole procedure has been carried out in the same way as previous procedures.
Sarah should be asked whether she knows of any such complaints made by other employees at the firm and, if so, how they were dealt with.
Therefore, even if Harry is able to establish that Sarah’s dismissal was fair or potentially fair, he must also have used a fair procedure. He undoubtedly did not use a fair procedure in dismissing Sarah. She will therefore be able to bring a claim to an Employment Tribunal for unfair dismissal, subject to establishing that she attempted to appeal Harry’s decision under the firm’s dismissal or grievance procedure. This claim will generally need to be commenced within 3 months of her dismissal. If Sarah is successful in her claim for unfair dismissal, the Employment Tribunal will first consider whether she wishes to be reinstated in her previous position or re-engaged in a similar position with the firm and, if so, it will decide whether such an order would be just and equitable. If not, compensation will be awarded to take account of the losses that Sarah has suffered up to the date of the hearing and the amount of time that she is likely to be unemployed. Compensation in unfair dismissal cases is limited to pure financial loss; damages for non-financial losses will not be recoverable (Dunnachie v Kingston-Upon-Hull City Council (2004)).
In summary, Sarah appears to have a claim for discrimination (and sexual harassment) on the grounds of sex and religion. She also has a strong claim for unfair dismissal on the basis that Harry’s reasons for her dismissal were unfair, and furthermore, he failed to adhere to correct disciplinary and dismissal procedures.
Please do not hesitate to contact me if I can help you further.
BIBLIOGRAPHY
Paper sources
Kidner, Richard; Blackstone’s Statutes on Employment Law; Oxford University Press, Sept 2006
Selwyn, Norman, L; Selwyn’s Law of Employment; Oxford University Press; 14th Rev Ed edition; Sept 2006
Wallington, Peter; Butterworths Employment law Handbook 2006; Lexis Nexis; June 2006
Electronic sources
Harvey on Industrial Relations and Employment Law; London, Butterworths
Case law
Dunnachie v Kingston-Upon-Hull City Council (2004) UKHL 36
Essa v Laing (2003) EWCA Civ 2
Polkey v A.E. Dayton Services Ltd (1987) ICR 142, HL
Legislation
Employment Act 2002
Employment Act 2002 (Dispute Resolution) Regulations 2004
Employment Rights Act 1996
Employment Equality (Religion or Belief) Regulations 2003
Sex Discrimination Act 1975
