Employment and Personal Injury Law

Transcription

1 What is the difference between Harassment, Bullying and Discrimination? The terms harassment, bullying and discrimination are used interchangeably but actually have very different legal meanings and remedies. To further compound matters, many Employment lawyers do not fully appreciate the civil aspect of claims for harassment and will often advise client based on remedies only available in the Employment Tribunal and fail to consider the alternative, and sometimes stronger, claim under the Protection from Harassment Act The purpose of this guide is to offer some guidance on the complex legal issues arising but it is important that each case is assessed individually based on the circumstances of each matter. The firm of Solicitors advising should have expertise in both Employment Law and Civil claims. There are three distinct possible claims which may arise: 1. Discrimination or Harassment under the Equality Act Harassment under the Protection from Harassment Act Bullying and Harassment in common law. All of the above claims can include to some degree any of the following: Sexual harassment, including inappropriate comments and touching; Verbal abuse and name calling; Treatment calculated to or likely to ostracise or humiliate an individual; Aggressive behaviour; Mean or spiteful behaviour; Assaults Racial comments Page 1 of 6

2 Claims under the Equality Act 2010 In order to pursue a claim under the Equality Act 2010 you must establish that an Employer has treated an employee less favourably because of a protected characteristic. The protected characteristics are: Age Race Disability Religion or belief Gender reassignment Sex Marriage of civil partnership Sexual Orientation Pregnancy and maternity The remit of the Act is very wide but there are a number of matters which need to be proven in order for a claim to succeed in the employment tribunal. In order to establish a claim for discrimination a Claimant must prove: 1. That they possessed one of the protected characteristics above, or the employer believed they to possess of these protected characteristics; 2. That the Claimant was treated less favourably because of the protected characteristic. 3. That the Claim is brought within 3 months of the last act of discrimination The common issues we find with these claims is that: A) Many Claimants may struggle to prove that the reason they have been treated less favourably is because of a protected characteristic. General bullying or harassment in the workplace would not be discriminatory unless the reason for the treatment was due to a protected characteristic. B) Many claims often find they are out of time. Another issue is that legal fees are not normally recoverable in the Employment Tribunal and therefore in some cases it may not be economically viable to pursue the claim in the Employment Tribunal. Page 2 of 6

3 Claims under the Protection from Harassment Act Claims under the Protection from Harassment Act 1997 are civil claims which can only be pursued in the Civil Courts. Unlike discrimination the motive behind the treatment is irrelevant however it is necessary to prove that the treatment was oppressive and unacceptable. The threshold to prove harassment under the Act is very high and the Courts have referred to the conduct being sufficiently serious to sustain criminal liability. One of the main advantages of the Act is the limitation period to pursue a claim is 6 years which is much longer than claims for discrimination. Furthermore legal costs are recoverable for claims under the Protection from Harassment Act Claims for Bullying and Harassment in Common Law Where conduct is not sufficiently serious to amount to harassment under the Protection from Harassment Act 1997, a claim may still be brought in negligence (common law) for bullying and harassment where the Defendant have failed to in their Duty of Care to protect employees from bullying and harassment. What are the key differences between a Civil Claim and a Tribunal Claim? There are a number of key differences between the legal principles which apply in the civil court compared to the Tribunal and we have listed below some of the key factors below: - Ordinarily a successful Claimant in a Civil Claim, can recover the majority of their legal fees from a Defendant. However in the Employment Tribunal it is extremely unlikely that you would recover any legal costs and you would therefore always have to pay your own legal fees in the Tribunal, even if you were successful. - The limitation period in the Tribunal is much shorter than the limitation period for a civil claim. Generally, you have three years from your date of knowledge to pursue a civil claim for personal injuries (or 6 years under the Protection from Harassment Act 1997) whereas the limitation period in the Tribunal is ordinarily 3 months. The Tribunal will not (save in exceptional circumstances) consider issues or problems which Page 3 of 6

4 have occurred more than 3 months prior to commencement of the Tribunal proceedings unless such acts form part of a continuous act. - There is generally no liability in the Employment Tribunal for bullying or harassment unless such acts are as a result of a protected characteristic. The common protected characteristics are Sex, Race, Disability, Religion and Age. In the civil courts there are accepted principles on which liability can be established for bullying and harassment. - There is generally no liability in the Employment Tribunal for losses or injuries incurred as a result of an excessive workload. - The Employment Tribunal cannot generally award damages for personal injuries unless such injury arises as a result of discrimination. Can you pursue both a civil claim and a tribunal claim separately? This is a very difficult legal question to answer. In some circumstances you can pursue claims in both the Tribunal and Civil Courts concurrently. However in certain situations you may only pursue either a Tribunal Claim or a Civil Claim as the Defendant may allege an abuse of process. We can advise you on a case by case basis as to whether it is possible to pursue separate proceedings in the Tribunal. As a very general rule, it is ordinarily possible to pursue an independent claim in the tribunal if the tribunal claim is solely for unfair dismissal or constructive dismissal. However if the Tribunal claim includes a claim for discrimination under the Equality Act 2010 arising out of the same circumstances as the civil claim then it may not be possible to pursue both a claim in the civil courts and tribunal. There are advantages and disadvantages to each type of claim and it is important that you seek our expert advice before embarking on proceedings so that we may advise you regarding your options. Page 4 of 6

5 Feel free to contact us if you have any concerns about your Employment situation Michael Lewin Solicitors are a leading UK law firm dealing with all aspects of business and personal legal services. This factsheet is intended for general guidance only and should not be treated as a definitive guide to the law it is not legal advice. If legal advice is required then please call us on Page 5 of 6

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