In light of all this, Frankie’s employer was in the wrong. The advice for her would be to take action against her employers’ wrong doings. There is a strong chance she could make a claim to an employment tribunal for sex discrimination.
The employment tribunal is an independent judicial body that attempts to resolve disputes between employers and employees. It is advised that Frankie should take her complaint to the employment tribunal because of the benefits involved. By taking it to the tribunal, the case can be resolved speedily. A case may take many years to reach court and usually cases reach the tribunal within weeks or months of initial proceedings. A tribunal would be less intimidating for Frankie as the procedures are less formal than those of ordinary courts and also the money involved would not be too much. There is no real need for legal representation and the panel generally consist of specialist individualist so there would be no need for specialist eye witness.
Despite these advantages it may be difficult for Frankie to make a claim based on breach of implied terms in the employment contract. This is because there is no hard evidence that suggests that her employer agreed to comply to such terms; nothing was written down or signed so it would be difficult to make a claim based on these grounds.
Part time employees, such as the case of Frankie, are protected by the part-time Workers (Prevention of Less Favourable Treatment) Regulations. (2002). This labour law was enforced in the UK to ensure that employees on a part time contract receive an equal pay salary to people on full time contracts doing identical jobs. It is important and worth looking at in Frankie’s case as it is an attempt to eliminate sex discrimination due to the fact that part time workers consist of mainly female individuals.
Frankie can also base her case on other grounds in order to improver her chance of claiming. The Equal treatment directive (2002) states that there should be no form of direct or indirect discrimination aimed at individuals (on the grounds of sex) within the private or public sector. The amendment in 2002 introduces concepts of sexual harassment (of various forms). It emphasises that they are forms of discrimination that violate the principles of equal treatment.
The situation that occurred with Frankie was a perfect example of discrimination, with discrimination meaning to single someone out and subject them to unfair treatment on the basis of prejudice. Frankie was subject to both direct and indirect discrimination. Direct discrimination is obvious and overt. Frankie experienced this through the loud comments made by the bar manager when he stated she had only been employed because she wore mini skirts. Another form of direct discrimination came in the form of the offensive text messages sent to her containing sexist suggestions. Indirect discrimination occurred through the passing round of photos which was done by her employers’ friends. Advice to Frankie would be to keep the offensive text messages and use them as evidence to show that she was subject to direct discrimination.
Frankie can build her case on the issues of harassment. Council directive 76/207/EEC is the foundation of EU law focused on the areas of gender equality in employment. Directive 2002/73/EC of The European Parliament and of the council puts emphasis on two forms of harassment. One being harassment related to sex and the other being harassment of a sexual nature. It defines harassment as: “unwanted conduct related to the sex of a person occurring with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile degrading, humiliating or offensive environment.”
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The treatment Frankie was subjected to fits into the above description of harassment. During the party, her dignity was violated, and an intimidating, offensive and hostile environment was created. We know it was intimidating and uncomfortable because it was stated in the case study that Frankie left as quickly as she could. Because of this Frankie would have a good chance of claiming if she took things to an Employment Tribunal.
Another issue that occurs with the situation is the issue of vicarious liability. Vicarious liability is when one party is held legally responsible for the actions of another. In this case it is when the employer is liable for the acts of his employees. This issue arises under the common law doctrine of agency. Referring to the case study, it is stated that the staff were involved in the party and specifically the bar manager; the bar manager being the individual that sent text messages of a sexual nature and overtly made offensive remarks. The landlord (Frankie’s employer) is therefore responsible for the actions of the bar manager as he is one of the staff under him.
Advice to Frankie would be to take this case to the tribunal as she would have a chance of claiming because failure to deal with complaints relating to other staff is seen as a serious breach of mutual trust and confidence.
The employer could avoid liability if he can prove and establish the fact that steps were taken to prevent the other staff and his friends from carrying out discriminatory actions. Maybe within the workforce there are codes of practice - equal opportunities policies. If there are and the employer can prove that they wee followed Frankie may find it problematic to claim in the tribunal.
Advice for Frankie would be to push the situation to the tribunal as she could build quite a strong case for herself. The fact that the incident happened after working hours does not work against her. The course of the employment contract includes work related social activities. Due to the fact that the party she attended was work related Frankie still has a strong case to present to the tribunal.
Frankie’s case also highlights a breach of confidentiality in the sense that her employer (the landlord) had discussed personal issues about her with the manager. This can only be proven if it can be proved that what the bar manager said, about her only being employed because she wore mini skirt, is true. An employee should have the confidence in his/her employer that personal issues will not be discussed behind their backs. This confidence and trust was not evident in Frankie’s case
The employment tribunal takes discrimination during the recruitment stages of a job very seriously. The main sensitive areas are sex, age, disability and race. If every candidate which applied for the job has genuine occupational qualifications and the decision to employ was based on race, sex, or other criteria then this is a breach of law.
If it can be proved that the only reason Frankie was employed was because she wore mini skirts and had “great assets” (as the bar manager claimed) then she would have a strong case against her employer. Although the decision to employ her was in her favour, the reasons behind it (if true) are not appropriate. If the employer’s reasons for employing her do not coincide with fair employment laws then the employer would be guilty not just of discrimination towards Frankie but of discrimination against other candidates who may have applied for the same job.
In conclusion advice to Frankie would be to present her case to the tribunal as she has solid evidence in the form of the offensive text messages of a sexual nature sent to her phone by the bar manager. Her unfair treatment would not be taken lightly by the tribunal as it was with her employer and there is a strong possibility that disciplinary actions would be taken against her employer and she could make a claim. Overall the possibility of Frankie making a claim at the Employment Tribunal is a strong one.
REFERENCES
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Adams, A (2006) Law for Business students. 4th edn. London: Pearson.
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Tribunals service Employment (____) Employment Tribunals. Available at: [Accessed 26 March 2009]
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_____. (2002) “Directive 2002/73/EC of the european parliament and of the council”. Official journal of the European Communities. 5 October. Pp. 15-20 [online] Available at: [Accessed 26 March 2009]
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Monster (1996) Employment Law. Available at: [Accessed 26 March 2009]
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Bytestart Limited (2005) Recruitment Laws that could catch you out. Available at: [Accessed 26 March 2009]