Setting the right tone

first_imgEmployeesin the UK are becoming more familiar with their right to maintain dignity inthe working environment. But what exactly does this broad concept mean, andwhat should employers be doing about it? By Katie Jackson-Turner and Joe Glavina When 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 is now readily available tomany employees on the Internet can easily be downloaded and disseminated in theworkplace via e-mail or more conventional means. Such material could be sentdirectly to an individual or circulated indiscriminately. Either way it may formthe basis of a complaint for which the employer 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 grounds of his or her sex (SexDiscrimination Act 1975), 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 – put togetherby the MSF Union in 1997 and steered by Lord Monkswell through the House ofLords in December 1997 and January 1998. Attempts to introduce the Bill intothe House of Commons, the first step before a Bill can become law, was blockedby John Major’s Conservative Government in February 1997. Shortly afterwards aGeneral Election was announced and the Dignity at Work Bill has been on holdever since. However, its failure to reach the statute books has not exactly left a holein this important area of social policy because it did little more than repeatand highlight 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 madeunder any of the discrimination statutes. The removal of the cap oncompensation that can be awarded for discrimination claims has led to moreclaims being brought and has forced employers to take such claims moreseriously. Employees are increasingly aware of their right to dignity at work and aremore willing to take action. This is partly due to the media interest inhigh-profile cases and reports of compensation running to hundreds of thousandsof pounds. Harassment Although the word ‘harassment’ does not actually appear in any of theanti-discrimination legislation, the Acts state that it is unlawful todiscriminate against an employee by subjecting him or her to a detriment. It has been accepted by the courts that harassment, provided it is not particularlyminor, will constitute a detriment. So while cases occasionally turn on whetherthe harassment in question is sufficiently serious to amount to a detriment,normally the key question is whether it amounts to discrimination. For the reasons already mentioned, the number of discrimination claims beingbrought in the employment tribunals has been rising steadily and is set tocontinue. Harassment takes many forms, occurs on a variety of different grounds and canbe directed at one person or many people. An essential characteristic is thatit is unwanted by the recipient and that the recipient finds the conductoffensive or unacceptable. Conduct becomes harassment if it is persisted in once it has been made clearthat it is regarded by the recipient as offensive, although a single incidentmay amount to harassment if it is sufficiently serious. It is the unwantednature of the conduct that distinguishes harassment from friendly behaviourwhich 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 were reasonablypracticable to prevent those acts. Therefore, employers who do not try to prevent harassment taking place mayfind that they are liable for the damage done by a harassment campaign by oneof their employees. In most cases employers should be able to point to theirequal opportunities policy as good evidence of their attempts to combatharassment and other forms of discrimination. Certainly, there should be aprocedure in place for dealing with 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 they make will be dealt with fairly and promptly. Managers should be trained so that they can try to create a workingenvironment free from harassment. They should be able to recognise harassmentand they should know 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 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 Regulation of InvestigatoryPowers Act 2000, and associated Regulations) prohibits employers from snoopingor eavesdropping on their employees’ telephone conversations and e-mailexchanges unless in certain specific circumstances. In addition 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 that the Labour Party campaignedon in its election manifesto prior to being elected to Government. Since then we have seen the introduction of a host of new legislationdesigned to protect the right to respect for family life. For example, for thefirst time part-time workers, fathers who want to take parental leave, andparents or carers who need time off work to deal with domestic emergencies aredirectly protected by the law. In addition maternity rights have been extendedand will be further extended 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 that has been suffered. This is an attractive course of action for employees because it means thatthey are 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 inrelation to settling claims of this type. When it comes to settling claims, itis common for employees’ advisers to ask for all personal injury claims to be”carved out” of the compromise agreement. However, there is no reason why personal injury claims of this type, broughton the back of a discrimination claim, cannot be settled. Katie Jackson-Turner and Joe Glavina are solicitors in the employmentdepartment of Addleshaw Booth & Co Dignity – European styleSince the election of the LabourGovernment the UK has become more willing to embrace European directivesdesigned to recognise and protect the right to dignity at work for allemployees of member states. Age discrimination in employment (December 2006),discrimination on grounds of sexual orientation, religion or belief (December2003) are to be barred by the new EU Equal Treatment Framework Directive whichrepresents the most important European discrimination legislation in the lastquarter of a century. The Directive states that harassment shall be deemed tobe a form of discrimination “when unwanted conduct … takes place withthe purpose or effect of violating the dignity of a person and (our emphasis)of creating an intimidating, hostile, degrading, humiliating or offensiveenvironment”. This is a more stringent test than currently applies under UKsex and race discrimination law, where only a showing of detrimental treatmentis required. It means that when the Directive is implemented, those complainingof harassment on the newly introduced grounds (sexual orientation, age orreligion) are likely to be better off bringing a complaint that they weresubjected to a detriment generally than by using any special provisionsrelating to harassment. Previous Article Next Article Setting the right toneOn 1 Feb 2002 in Personnel Today Comments are closed. Related posts:No related photos.last_img read more

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