Choose your court

Time limitation in discrimination claims may no longer be such a critical hurdle after recent developments in liability laws. It is now not so clear-cut, when faced with a potential claimant complaining of work-based discrimination, whether one needs to check that the client has done the sensible thing and consulted you within the relevant time period for issuing an ET1. Vicarious liability and liability under the Protection from Harassment Act 1997 (PHA) or common-law negligence, require the consideration of issuing proceedings in the County Court as an alternative, if the conduct can properly be characterised as harassment. The more favourable outcome in each case is likely to turn on the facts, which is why all practitioners handling such claims should be aware of the pros and cons of the respective jurisdictions.Brief explanation of the two regimes

The door to harassment claims brought by employees against their employers was firmly wedged open by the affirmation by the House of Lords in Majrowski v Guy's and St. Thomas' NHS Trust [2006] UKHL 34 that employers could be held liable for the statutory torts of their employees '“ in particular, for acts of harassment under PHA. Further, the specific acknowledgement that a claim could be founded on the basis of one act, coupled with a fear of further harassment (s 3 of the PHA) means that, as long as an claimant can show on the balance of probabilities that they were caused harassment by the action of an employee and feared that this would be repeated, an actionable claim arises. This, coupled with a sympathetic attitude towards claims for psychiatric injury brought on by harassment in negligence, both vicariously and for the failure of the employer to prevent such harassment, allow claims previously couched as discrimination to be recast as tortious actions.

The recent case of Lister v Hesley Hall [2002] 1 AC 215 dismantled the defence of the employee being on a 'frolic of his own' in favour of a new test, of the act in question being 'so closely connected' with the work the employee was employed to do. The 'close connection' test has subsequently been refined and extended and employers can no longer safely shelter behind the frolic defence. In contrast, the employment law test remains that the acts complained of must be 'in the course of employment'. If there is any doubt as to whether an employer is likely to be held liable for the acts of his employee, there are clear advantages to the common law tortious test.

Harassment in the ET is governed by different regimes. The most obvious is the discrimination legislation. All legislation on discrimination prevents harassment on the basis of the particular prohibited grounds. Also the tribunal's jurisdiction to hear claims of constructive dismissal has obvious relevance.

From an early stage, a clear decision as to which jurisdiction to litigate in must be made and what constitutes harassment differs in both forums. Under the PHA, the key question is the mindset of wrongdoer, tempered with a degree of objectivity (s 1(1)(b)). The test in the harassment provisions of the discrimination legislation is objective (for instance, s 4A of the Sex Discrimination Act 1975), although the tribunal is expressly to have regard to the perception of the victim and the intention of the wrongdoer. In non-harassment discrimination cases, intention of the wrongdoer is irrelevant.

However, the breadth of the definition of harassment in the PHA means that it can overlap with many of the heads of discrimination. Section 7(2) of the PHA states that harassment 'include[s] alarming the person or causing the person distress'. This is a wide definition, that could potentially apply to 'non-harassment' discrimination, as well as harassment prohibited by employment legislation owing to the exhaustive, and restrictive, definition of harassment in that legislation. Further, in claims of constructive dismissal there may be a claim in the civil courts, in addition to the ET's jurisdiction, either under the PHA or general common law.

Before litigation

Since October 2004, the employee who wishes to commence ET proceedings for discrimination will, in many cases, need to send to their employer a grievance that is compliant with the Employment Act 2002. Tight time limits apply. Currently, it is uncertain whether a potential claimant needs to send a grievance concerning the actions of a fellow employee who is ultimately named as a co-respondent. In the EAT decision of London Borough of Lambeth v Corlett (UKEAT/0396/06/DA), Peter Clark J, while not being asked to decide this point, stated he could see no reason why this should not be the case. There would then be no difference in the applicable time limits for commencing proceedings against the employer and fellow employee; both will be extended to six months (with the possibility of a 'just and equitable' extension on top). However, the decision of Lady Smith, sitting alone in Bisset v Martins and Castlehill Housing Association (UKEAT 0022/06, unreported) may have the effect that neither of the two statutory grievance procedures applies between fellow employees and so the claimant is faced with two limitation periods for one claim: three months for their claim against the fellow employee, yet six months for their claim against the employer. This may make forum shopping academic, as the relevant limitation period may have expired, making the civil jurisdiction the only one available.

There is therefore a 'front-loading' of work in ET claims, where the tight limitation periods require much to be done in a very short period of time. Further, despite the short limitation period, the grievance entered will often provide ammunition for cross-examination at a final hearing, and therefore needs to be carefully worded.

The urgency, uncertainty and requirement for early precision necessitated by the narrow limitation window compares unfavourably to the Personal Injury Pre-Action Protocol (for negligence claims '“ and the spirit should be adopted for PHA claims) and the Civil Procedure Rules. This makes a key tactical consideration the differing limitation periods applicable to the two regimes. If the potential claimant presents himself before the expiration of ET time limit, all well and good. With both options available, a full consideration of the advantages and disadvantages of the two regimes can be undertaken. If he does not, the fallback position may be to issue in the County Court and take advantage of the longer limitation periods. This will allow further investigation and the obtaining of medical and other reports before going to the time and expense of issuing proceedings only to discover problems with the presented case.

The advantages of the longer-term approach are particularly illustrated by claims involving damages for stress and/or PTSD brought on by the acts of harassment. Psychiatric injuries often manifest months or even years after the events that caused them; diagnosis of depression and medical evidence that it was caused by harassment, for instance, is likely to take some time. Although the ET is able to award damages for such injuries if they are linked to the discrimination complained of, the tight time constraints for the issuing of an ET1 mean that the effects of the injury may not be fully appreciated.

During litigation

A further consideration is the burden of proof. In direct discrimination cases, the ET must go through a two-stage process. The first stage requires the applicant to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the applicant. The second stage requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act. If the respondent's explanation is inadequate, it will necessitate a conclusion that the complaint should be upheld: see Igen Ltd v Wong [2005] IRLR 258. Compare this shifting burden of proof to the traditional civil approach. A timid or worried complainant may be better advised to bring a claim in the tribunal, where the hurdle they have to clear is lower, and easier to satisfy.

Another important tactical consideration is the requirement in tortious actions for the harm caused to have been foreseeable. Contrast this with the ET's strict liability test requiring an applicant only to show that there is a direct causal link between the discrimination and the injury: see Laing Ltd v Essa [2004] IRLR 313.

Once vicarious liability is established in the civil courts, the liability of the employer is strict. Compare this to the 'statutory defence' in discrimination cases whereby the employer can escape liability if they are able to satisfy the tribunal that they took all steps that a reasonable employer would have taken to prevent the wrongdoer from doing that act. The battleground in the civil courts is therefore more likely to be focused on foreseeability and causation. In the ET, battle lines are likely to be drawn on a number of grounds including the conduct of the employer in preventing such actions by fellow employees.

End of litigation

Costs have to be borne in mind. While the ET is now awarding costs, or a proportion thereof, more frequently under the current rules of procedure, the usual rule in the civil courts, other than for small claims, is that the winner will recover his costs from the other side. In complicated cases involving medical evidence and multiple witnesses, heard over several days, the potential recoverability of costs is an important factor.

Tactical decisions

There is now a clear need for a tactical decision in relation to the most advantageous forum in cases of this type, as well as real precision in the way the claim is pleaded as the possibility of competing forums and claims offers up the obvious potential for res judicata-based arguments. When advising clients of the potential for bringing claims in two jurisdictions, one must be especially careful of these issues.