Setting the right tone

first_imgEmployees in the UK are becoming more familiar with their right to maintaindignity in the working environment. But what exactly does this broad conceptmean, and what should employers be doing about it? Katie Jackson-Turner and JoeGlavina reportWhen an employee complains about his dignity at work – or more accuratelythe lack of it – the complaint usually relates to some kind of harassment orbullying. In general terms it is treatment the individual finds intimidating, hostile,offensive or disturbing. Usually it is meted out intentionally towards anindividual but it can, equally, be a complaint relating to an unpleasant andhostile working environment. For example, sexually explicit material which isnow readily available to many employees on the Internet can easily bedownloaded and disseminated in the workplace by e-mail or more conventionalmeans. Such material could be sent directly to an individual or circulatedindiscriminately. Either way it may form the basis of a complaint for which theemployer may be liable. There is, of course, a raft of equal opportunities legislation in the UKgeared to addressing the issue of dignity at work. It is unlawful for employersto treat a person less favourably on the ground of his or her sex (SexDiscrimination Act 1975) or race (Race Relations Act 1976) or disability(Disability Discrimination Act 1995). Indeed, there was even a specific pieceof legislation covering the subject – the Dignity at Work Bill – which was puttogether by the MSF Union in 1997 and steered by Lord Monkswell through theHouse of Lords in December 1997 and January 1998. Attempts to introduce the Bill into the House of Commons, the first stepbefore a Bill can become law, was blocked by John Major’ s ConservativeGovernment in February 1997. Shortly afterwards a general election wasannounced and the Dignity at Work Bill has been on hold ever since. However,its failure to reach the statute books has not exactly left a hole in thisimportant area of social policy because it did little more than repeat andhighlight existing measures on equal opportunities. One of the reasons for the significant increase in interest in this areaover recent years is the fact that there are no upper limits on awards made underany of the discrimination statutes. The removal of the cap on compensation thatcan be awarded for discrimination claims has led to more claims being broughtand has forced employers to take such claims more seriously. Employees areincreasingly aware of their right to dignity at work and are more willing totake action to protect their rights. This is partly due to the media interestin high-profile cases and reports of compensation running to hundreds ofthousands of pounds. Harassment Although the word “harassment” does not actually appear in any ofthe anti-discrimination legislation, the Acts state that it is unlawful todiscriminate against an employee by subjecting him or her to a detriment. Ithas been accepted by the courts that harassment, provided it is notparticularly minor, will constitute a detriment. So while cases occasionally turn on whether the harassment in question issufficiently serious to amount to a detriment, normally the key question iswhether it amounts to discrimination. For the reasons already mentioned, thenumber of discrimination claims being brought in the employment tribunals hasbeen rising steadily and is set to continue. Harassment takes many forms, occurs on a variety of different grounds andcan be directed at one person or many people. An essential characteristic isthat it is unwanted by the recipient and that the recipient finds the conductoffensive or unacceptable. Conduct becomes harassment if it is persisted inonce it has been made clear that it is regarded by the recipient as offensive,although a single incident may amount to harassment if sufficiently serious. Itis the unwanted nature of the conduct which distinguishes harassment fromfriendly behaviour which is welcome and mutual. Employers’ defence? All three discrimination Acts state that an employer is liable for anyunlawful discrimination carried out by its employees during the course of theiremployment, unless the employer can show that it has taken such steps as werereasonably practicable to prevent those acts. Therefore, an employer who doesnot try to prevent harassment taking place may find that it is liable for thedamage done by a harassment campaign by one of its employees. In most casesemployers should be able to point to their equal opportunities policy as goodevidence of their attempts to combat harassment and other forms ofdiscrimination. Certainly, there should be a procedure in place for dealingwith allegations of harassment. In some instances, tribunals have found dismissals to be unfair because theemployer did not follow its own procedure. There should be someone thatemployees can approach if they are being harassed and they should be able tofeel that any complaint that they make will be dealt with fairly and promptly.Managers should be trained so they can try to create a working environment freefrom harassment. They should be able to recognise harassment and they shouldknow how to deal with the problem. Dignity – a broad concept Although harassment is perhaps the most obvious way a person’ s dignity atwork might be undermined, dignity at work is a broad concept which includesareas such as the right to privacy and the right to respect for family life.These are new and developing areas of employment law and difficult areas foremployers to manage. Balancing the employee’ s right to privacy against the employer’s need toensure that, for example, its e-mail and Internet facilities are not beingmisused is difficult. Legislation introduced in October last year (the Regulationof Investigatory Powers Act 2000, and associated Regulations) prohibitsemployers from snooping or eavesdropping on their employees’ telephoneconversations and e-mail exchanges unless in certain specific circumstances. Inaddition under the Human Rights Act 1998 we all have a right to privacy. While as a general rule, employees will not be able to sue their employerdirectly under the HRA, an employer who has breached any of the new “humanrights” will have difficulty justifying its behaviour before an employmenttribunal. As a consequence, constructive dismissal claims which in the pasthave been difficult to bring successfully are more likely to succeed. Respect for family life was one of the themes the Labour Party campaigned onin its election manifesto prior to being elected to Government. Since then wehave seen the introduction of a host of new legislation designed to protect theright to respect for family life. For example, for the first time part-timeworkers, fathers who want to take parental leave, and parents or carers whoneed time off work to deal with domestic emergencies are directly protected bythe law. In addition maternity rights have been extended and will be furtherextended in the future. Personal injury In serious cases of harassment and/or bullying the victim may suffer eitherphysical or psychiatric injury. As the Court of Appeal has recently confirmed,in this type of case when an employment tribunal awards compensation for theunlawful discrimination (uncapped), it also has jurisdiction to award damagesfor both the physical and psychiatric injury. This is an attractive course of action for employees because it means theyare free to pursue compensation for their personal injuries without havingrecourse to the usual civil courts. This avoids the risk of having to pay theemployer’ s costs in the event of the action proving unsuccessful. From the employer’ s point of view there is an important practical point in relationto settling claims of this type. When it comes to settling claims, it is commonfor employees’ advisers to ask for all personal injury claims to be”carved out” of the compromise agreement. However, there is no reasonwhy personal injury claims of this type, brought on the back of adiscrimination claim, cannot be settled. n Katie Jackson-Turner and Joe Glavina are solicitors in the employmentdepartment of Addleshaw Booth & Co Dignity, European styleSince the election of the Labour Governmentthe UK has become more willing to embrace European directives designed torecognise and protect the right to dignity at work for all member states’employees. Age discrimination in employment (December 2006), discrimination ongrounds of sexual orientation and discrimination on grounds of religion orbelief (December 2003) are to be barred by the new EU Equal Treatment FrameworkDirective which represents the most important European discriminationlegislation in the last quarter of a century.The Directive states that harassment shall be deemed to be aform of discrimination “when unwanted conduct … takes place with thepurpose or effect of violating the dignity of a person and (our emphasis) ofcreating an intimidating, hostile, degrading, humiliating or offensiveenvironment”. This is a more stringent test than currently applies underUK sex and race discrimination law, where only a showing of detrimentaltreatment is required. It means that when the Directive is implemented, thosecomplaining of harassment on the newly introduced grounds (sexual orientation,age or religion) are likely to be better off bringing a complaint that theywere subjected to a detriment generally than by using any special provisionsrelating to harassment. Previous Article Next Article Related posts:No related photos. Setting the right toneOn 1 Dec 2001 in Personnel Today Comments are closed. last_img read more