Managing allegations of harassment – a legal viewpoint
Being asked to investigate an allegation of harassment (as opposed to bullying) is not something to be undertaken lightly. Identifying the issues, conducting the interviews and producing a report that contains all the relevant information but which does not include opinions presented in such a way as to sway the Chairman of any disciplinary hearing is, in itself, a difficult undertaking.
And, of course, you need to keep a weather eye on the potential for any case to end up in Employment Tribunal where an investigation report and transcript of any subsequent hearing will be central pieces of evidence.
A recently reported EAT case (Richmond Pharmacology –v- Dhaliwal) provides a useful insight into the questions which should be addressed by any Employment Tribunal and, therefore, ought to be addressed by any organisation managing such a case.
In the transcript of the EAT proceedings, the Hon Mr. Justice Underhill, (the new President of EAT), firstly reminds us that the law regarding harassment changed in July 2003 when a uniform definition was introduced for all strands of discrimination. As a result, any case law which arose prior to July 2003 should probably be disregarded or at least treated with caution.
Any case law arising out of the Protection from Harassment Act 1997 should be disregarded because the definitions against which a case is judged are different from that in the six strands of discrimination legislation. As a reminder, the 2003 legislation defines harassment as
“when unwanted conduct related to race or ethnic origin (insert whichever strand of discrimination you are dealing with) takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. Conduct shall be regarded as having the effect specified having regard to all the circumstances, including in particular the perception of that other person......"
It is not difficult to break down the paragraph into the questions to be addressed, but internal investigations and disciplinary hearings sometimes forget that they should not only be addressing internal policies but also statutory provisions.
So, when beginning an investigation into an allegation of harassment it is worthwhile considering setting out these questions as an integral part of the terms of reference provided to the investigator. Indeed, anyone chairing a disciplinary hearing should also be reminded of the key components to be addressed.
1. Was there unwanted conduct ?
2. Did the conduct in question
• Have the purpose OR
• Have the effect of either violating dignity or creating an adverse environment
3. Was the conduct on the grounds of the victim’s race (or gender, sexual orientation, religion, belief, age or disability).
These are objective questions which it is usually quite easy to answer during a disciplinary investigation and hearing. The fourth question is more subjective and therefore more difficult to answer
4. If the victim experienced the feelings and/or perceptions, was it reasonable for her/him to have done so?
Mr. Justice Underhill says “if the tribunal feels that the victim was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of (the law)”.
In this particular case , Miss Dhaliwal, a UK citizen of Indian ethnicity, had resigned from Richmond Pharmacology for reasons unrelated to her subsequent claim of harassment. The case arose out of a comment made during the notice period by Miss Dhaliwal’s manager, “we will probably bump into each other in future, unless you are married off in India”.
The tribunal agreed that the comment was not made with the purpose of violating Miss Dhaliwal’s dignity but nevertheless it did have the effect of doing so. After considerable deliberations around Question 4, the tribunal found in Miss Dhaliwal’s favour and awarded her £1,000 in compensation; a figure which perhaps reflects the Tribunal’s views as to the reasonableness of Miss Dhaliwal’s reaction.
Richmond Pharmacology appealed the decision for a range of legal reasons but EAT dismissed the appeal, finding in Miss Dhaliwal’s favour.
£1,000 may not be a great deal of money to pay out in compensation but the cost to Richmond Pharmacology in terms of legal fees and time expended on the case would have been substantial.
It is perhaps also worthwhile remembering that claims of harassment can be brought against both the organisation and the individual who perpetrated the harassment. It is not unusual for compensation to be awarded against both respondents where two (or more) have been named.
Organisations can help to protect themselves by ensuring that all staff have been trained and should keep audit trails in order to prove that any named respondent has been trained. Having a policy document is simply not enough, however well disseminated it is.
In this particular case Richmond Pharmacology could perhaps have done more to prevent or stall this successful claim. Miss Dhaliwal was dissatisfied with the response of her grievance; a thorough investigation and proper action on the outcome of the investigation may have prevented the dissatisfaction. Alternatively, mediation may have settled the dispute to everyone’s satisfaction.
Cullen Scholefield offer both mediation and training in all the issues covered in this newsletter report.
