Update: employment

Victimisation

In discrimination law, victimisation provisions are often an unwelcome and unexpected sting in the tail for defendants. Victimisation occurs where consciously or unconsciously the complainant is subjected to unfavourable treatment by reason of the fact that they have done a protected act, that is, something 'by reference to' the discrimination laws. A claim of victimisation is valid, however weak the original claim of discrimination, provided the latter was done in good faith.

In 2007 the House of Lords reminded respondents that trying to persuade employees to settle could amount to victimisation if the employer's conduct went further than was reasonable in protecting their own litigation interests. In the case of St Helens Metropolitan Borough Council v Derbyshire the majority of women in the school meal service of the local authority had settled an equal pay claim. The council wrote to all the women pointing out that the continued litigation by the minority could result in a loss of services due to cutbacks. This was found to be 'victimisation' in that it could reasonably be seen as an attempt to pressurise the minority who were standing out into dropping their claims.

Judging from the obiter dicta and in particular that of Lord Neuberger, it seemed that the prudent course of action in such circumstances would be carefully worded communications through legal representatives rather than direct to the litigating parties. The issue of litigation privilege was not raised or considered in the Derbyshire case. The issue did, however, arise in the recent case of South London and Maudsley NHS Trust v Dathi [2008] IRLR 350. In that case, Mrs Dathi, having won a previous claim of discrimination against the trust and an individual respondent, launched new proceedings alleging victimisation against the trust in respect of two letters that its representatives had written during the course of proceedings. One was a letter about disclosure and the other was about costs. The Employment Appeal Tribunal (EAT) has now found that both communications attracted litigation privilege.

In a wide-ranging judgement that explores the authorities, the EAT concluded that there was nothing special about discrimination law that took the parties outside the established rules relating to immunity for legal proceedings which were restated by Devlin L J in Lincoln v Daniels [1962] 1 QB 237 at 258. In that case, Lord Justice Devlin set out three categories of privilege, the first being everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence. The second covers everything that it done from the inception of proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of proceedings. The third category and the most difficult is the privilege which attaches to instructions and evidence provided to solicitors in the course of preparation of proceedings.

The EAT had no difficulty in finding that the two documents alleged to amount to acts of victimisation in fact attracted litigation privilege as properly understood. This was either because they were in the nature of 'pleadings' or else because they were brought into being for the purpose of litigation. This case is a further reminder that measured communications through appropriate channels are unlikely to amount to acts of victimisation even if their contents are highly unwelcome to the other party.

Not everything done in and around the tribunal attracts privilege. The extent of judicial proceedings immunity was tested recently in Nicholls v Corin Tech Ltd & Ors. UKEAT/0290/07. In that case the claimant claiming disability discrimination alleged that the respondent's representative had 'abused and intimidated' him outside the tribunal lifts after a hearing, with a view to deterring him from proceeding.

The claim was summarily dismissed by the employment judge on the basis that the alleged conduct attracted judicial immunity, being closely connected with the hearing which had preceded it. This decision was reversed on appeal. Although the point was not fully argued, the EAT felt about to hold as a short point that conduct which took place in the tribunal building, but which was extraneous to the proceedings themselves, could not attract litigation privilege. Worse still for the respondent, such conduct did meet the test for post-employment discrimination in that it 'arose out of and was closely connected to' the employment relationship between the claimant and the respondent. Accordingly, the claimant could rely on it as an additional head of claim in his disability discrimination proceedings.

The consequences of improper conduct were starkly demonstrated in the highly charged case of Force One Utilities v Hatfield [cite] where the respondent's main witness behaved outrageously in a car park near the tribunal. He not only threatened and swore at the claimant, but apparently blocked the exit to the car park and was unfortunate enough to be witnessed in so doing by members of the tribunal panel. The claimant was understandably alarmed and distressed and the tribunal ordered that the respondent could take no further part in proceedings (not even to argue remedy) because his conduct had rendered a fair trial impossible. The tribunal's decision was upheld on appeal. As an aside, the president of the EAT confirmed that the tribunal members could rely on their own evidence as to what had happened.

Harassment

The law relating to harassment continues to create challenges '“ what it means, how far it extends, what sort of protection it provides. In Sunderland City Council v Conn [2007] EWCA C iv 1492, the Court of Appeal reviewed again the kind of conduct that could amount to harassment for the purposes of the Protection of Harassment Act 1997. In that case, Mr Conn had been employed by the council as a manual worker and alleged a number of incidents of harassment of which two were found proven by the recorder at first instance. Both of those involved verbal threats of violence from Mr Conn's manager. However, only one involved a threat towards him. The Court of Appeal agreed, with some reluctance, that one of the incidents could amount to unlawful conduct, but all the judges were clear that the other could not.

In finding that the council was not liable for harassment, the Court of Appeal reminded us again that to cross the boundary from the regrettable to the unlawful, the gravity of the misconduct must be of an order which would sustain criminal liability under s1 of PHA 1997. The mental element that has to be present is that the alleged offender knows or ought to know, judging from the standards of what the reasonable person would think, that his/her conduct would amount to harassment of another. And there must be at least two separate incidents both of which meet the test. In this case the Court of Appeal also reminded us that what crosses the boundary between unattractive and even unreasonable conduct and conduct which is oppressive and unacceptable may well depend on the context in which the conduct occurs.

As Lord Justice Gage commented, conduct that might not be harassment on the factory floor and in the barrack room might well be harassment in the hospital ward and vice versa. The Court of Appeal was trenchantly unanimous in allowing the council's appeal against the findings of the recorder that

Mr Conn had been subject to harassment. Lord Justice Buxton further commented that the fact that Mr Conn was particularly fragile and therefore may have been more alarmed and distressed than a person of a more robust frame of mind was not a relevant consideration.

In April the Sex Discrimination Act (Amendment) Regulations 2008 came into force. Among other things, it has provided a new and widened definition of harassment in sex discrimination cases. Harassment will now occur not only where unwanted conduct is on grounds of the complainant's sex, but also where unwanted conduct is 'related' either to his/her sex or that of another.

This amendment will widen the scope of potential claims. In particular it will no longer be permissible for a respondent to argue that people of the opposite sex were treated in the same or in a similar manner. The changes also make it clear that individuals who are offended by behaviours directed towards other people can complain of harassment themselves. Nor indeed does the complainant have to be of the same sex as the third party who is being harassed. So a man could now bring a claim of harassment in respect of the effect of his working environment in consequence of having experienced or witnessed demeaning banter towards a female colleague and vice versa. It remains to be seen what impact these changes will have on the number and type of claims. One obvious consequence of the widening of the definition will be on conduct of proceedings: defendants will increasingly concentrate on the test of objectivity and reasonableness that is provided in the regulations if they want to resist claims. In other words, defendants will seek to argue that the conduct did not, viewed reasonably and in all the circumstances, amount objectively to harassment, even if the complainant was upset enough to bring a claim.

The other change involves liability for third party conduct. This introduces a new 'three strikes' provision whereby an employer is treated as having itself subjected a woman to harassment if it is aware that the woman in question has been subjected to harassment in the course of her employment on at least two previous occasions and she is subjected to harassment on a third occasion in circumstances in which the employer has failed to take 'such steps as would have been reasonably practicable' to prevent third party harassment. Perhaps not surprisingly much comment has been focused on the fact that the claimant needs to have experienced harassment at least twice (and told her employer) before the employer becomes liable for a third act of harassment.

The case of English v Thomas Sanderson Blinds Ltd clearly demonstrates the different ways in which harassment can be interpreted. In the Thomas Sanderson Blinds case, Mr English while apparently known to be heterosexual, was subjected to homosexual banter. His claim of unlawful sexual orientation harassment failed both at tribunal and EAT level. The Employment Equality (Sexual Orientation) Regulations 2003 makes harassment 'on the grounds of sexual orientation' unlawful.

They do not contain an additional provision making harassment 'related to' sexual orientation whether of the complainant or another person unlawful, unlike the new Sex Discrimination Regulations. In a clear and thoughtful judgment, the EAT concluded that the formulation of Regulation 5 of the 2003 Regulations did not permit the wider protection which the claimant sought.

The EAT also commented obiter that Regulation 5 does not properly implement the directive. Since the respondent in this case was a private party, the claimant could not rely on the directive itself. Leave to appeal was granted.