For employers that find themselves in an Employment Tribunal in a claim for sexual harassment, if the Tribunal find that they also breached a new legal requirement of failing to take ‘reasonable steps’ to prevent harassment, they will face extra penalties.

In the event of a breach, employers could be forced to pay out an extra 25 percent uplift on compensation to victims under the Worker Protection (Amendment of Equality Act 2010) Act, which comes into effect later this year.

Failure to implement protective policies and procedures and a lack of robust systems which are supported by measures to uphold the law, such as training and culture change in the workplace, could prove costly.

Gone are the days where it was enough for a business to be reactive to an allegation of sexual harassment. Today, it is by no means enough.

Companies need to demonstrate to all employees that sexual harassment will not be tolerated, and they need to set out in detail the measures they have taken or are taking to prevent it.

With another five months to go until the law comes into effect, businesses need to be taking steps now. As well as ensuring they are fully prepared for the legislation, early preparation will allow them to effectively demonstrate they took all reasonable steps to prevent harassment within the workplace, should there ever be a tribunal claim.

Possible steps could include providing training on what may constitute harassment including sexual harassment and update any relevant policies to make clear zero tolerance stance and provide employees with information on a clear pathway to raise concerns if they consider they are victims of sexual harassment.

The creation of a central log for complaints of harassment of any nature or conducting regular assessments to identify risk factors and preventative measures in the workplace.

The new law comes into effect in October this year.

For further advice on the above, or if you require any other Employment Law services and would like to discuss your situation with an expert employment solicitor, then please contact our experienced team.

Article written by Employment Solicitor, Kerry Hudson.

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What might appear to be an employee having a bit of fun or a risqué joke, after a drink or four, could, in fact, give rise to a claim against the employer for sexual harassment or other forms of discrimination. This is because employees’ discriminatory acts are treated as having been carried out by the employer if they are done “in the course of employment”.

Behaviour at an office party is likely to be considered be carried out in the course of employment, whether the party takes place in the office or down the pub.

Protection from discrimination is wide ranging and any unfavourable comments or acts connected to the following can be discriminatory: sex, race, age, disability, sexual orientation, religion or belief, pregnancy and maternity, marriage or civil partnership and gender re-assignment.

Employers should be able to successfully defend such actions if staff have acted contrary to the employer’s instructions not to discriminate. A good way for employers to protect themselves is to have an Equal Opportunities policy and to ensure that all staff have been trained on it.

Where an employer has not already taken these steps, or even if it has done so, it should consider reminding staff what constitutes unacceptable behaviour and what the consequences could be if they indulge in it.

If the worse happens and allegations of discrimination are made, they should be fully investigated by employers and disciplinary action should be taken against the accused, if appropriate.

Merry Christmas everyone!

Brindley Twist Tafft & James LPP

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What do they show us about the Employment Tribunals in England and Wales?

The Employment Tribunal have published their statistics for the year 2012/13, and can be found here: https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-april-to-june-2013

The statistics give us an interesting insight into what is happening before the Employment Tribunal, and trends that may be forming.

However, a word of warning should be heeded, that these statistics are difficult to read accurately given a variety of external features which will have distorted the figures. In particular this year will no doubt have been affected by the imposition of tribunal fees which forced employees to issue early in order to avoid incurring such fees, and the true impact of this will not be seen until the present years’ figures are released. The rise of Multiple claims also seeks to obscure the true picture of cases progressing through the tribunal.

Nevertheless, the figures still show some important information about the employment tribunal landscape and how it is changing. This information is worth spending some time considering by any person intending to issue an employment tribunal claim, whilst it is no substitute for considering the merits of a case, it does give an idea of how the tribunal tends to fall.

Most notably;

• Only 191,541 claims were received by the Employment Tribunal in the year 2012/13. Comparatively there were 29.84 million people in employment in this year according to the Office for National Statistics.

• Of all claims issued, only 9% of Claimants were successful at a final hearing. Against that background, 58.6% of unfair dismissal claims that reached a hearing were unsuccessful, and the employer successfully rebutted them. It would therefore appear to remain the case that an Employer has a statistically higher chance of successfully defending a claim before the Employment Tribunal.

• The time in which the cases are dealt with appears to be increasing, with the median time rose from 33 weeks, compared to 30 weeks in 2011/12.

• The Number of claims overall rose by around 2.5%. However, single claims were down by nearly 10%.

• The average award for unfair dismissal was £10,127, but the median was a paltry £4,382. This continues to indicate that Unfair Dismissal awards are frequently low and are by and large not significantly damaging; against that background it is clear that the recent changes to legislation to cap unfair dismissal costs at a years’ salary is largely more smoke and mirrors by a government seeking to win the votes of the electorate but in reality having a minimal impact.

• The average Race discrimination claim was £8945, with the median being £4831; The highest award was little over £65,000. This has seen a decrease all round compared to previous years.

• The average Sex discrimination award was £10,552, with the median £5,900. The highest award was in excess of £318,000.

• Disability Discrimination carried the highest average award of £16,320 and median award of £7,536. The highest award was £387,472.

• There were 522 costs awards to employers, and 129 costs awards to employees, carting an the average award of £3,141. There was one Cost Order for every 205.79 cases heard. It follows that employers were around 4 times more likely to get a costs award than an employee. However, the prospects of getting a costs award to recover costs is tiny. Clearly this will be a factor for both employers and employees when deciding whether to pursue a claim.

In the event that you are considering making a claim before the Employment Tribunal, please feel free to contact us on 024 7653 1532 to discuss your claim, its merits, and the implication that the above statistics may have upon it.

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However, some claims may be run before an employment tribunal whilst an employee remains in their employment, for example unlawful deductions claims, breach of TUPE, and most notably discrimination claims, or where another employee is caused to be commented upon. It is foreseeable that in such circumstances an employer or a representative will state something which an employee may find disagreeable, for example it may justify a refusal or promotion on the grounds that an employee was not deemed to be sufficiently competent, or it may have decided not to up hold a complaint on the grounds that it found an employee to be disingenuous, etc.

In the event that such circumstances are made within the normal course of the employment, outside of the relevant procedure, or broadcast to a wider audience than was required to know such information (as an Employment Tribunal case would, given that it is open to the general public), such may be deemed to amount to a breach of Mutual Trust and Confidence and give rise to a claim for constructive dismissal. However, what happens where such statements are made in as part of the defence or supporting evidence within an Employment Tribunal?

The question was tested in Singh v Reading Borough Council.

On appeal the EAT confirmed the Tribunal’s decision that anything said during the course of a judicial proceeding, including an Employment Tribunal attracts an absolute legal privilege and as such was incapable of forming the basis of a claim. The logic behind this is that a party must be free to advance arguments in support of its defence, so long as they are honestly, genuinely and reasonably held, without fear from suffering adverse consequence, as to remove that would potentially leave parties exposed to claims and act as a limit the execution of justice. It therefore follows, that an employee cannot obtain any new claim, for example constructive dismissal, as a result of something which is said in the course of proceedings.

However, caution should be exercised and a distinction drawn when conducting such litigation. Whilst a claim for constructive dismissal may not arise as a result of anything that is said or implied before an employment tribunal, it is not to say that the provision of new evidence may in fact provide the Claimant with access to information and evidence upon which they were previously unaware regarding their treatment or as to how a decision was reached, and therefore claim Constructive Dismissal based upon such information. Further, this decision should not be viewed as a carte blanche for respondents to say what they like in the proceedings; a failure to make honest, genuine and reasonably held comments could be seen as an abuse of process, or as distinctly disingenuous which may in turn taint the Respondent’s evidence and lead to adverse conclusions been made by the Employment Tribunal. Further, deliberately and knowingly misleading a judicial body may have potential ramifications under criminal law.

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