Archive for February, 2010

The thing about workplace bullying

Published by DarrenN on February 22, 2010 in Employment Law. 0 Comments


Workplace bullying seems to be in the news this week – can’t think why.

As an employment lawyer I have a problem with bullying. Let me rephrase that. I find it difficult to talk about bullying because there is no legal concept of bullying as such.  An employee can’t put ‘workplace bullying’ on an employment tribunal claim form and expect to get anywhere.  Proving that you have been bullied at work – whatever that means – does not in itself mean that you have any legal claims at all.

Harassment

Bullying should not be confused with harassment. There are two types of harassment. In employment law we are most used to the harassment that consists of unwanted conduct which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environment. However this sort of harassment is a form of discrimination and is only unlawful if the treatment is linked to either sex, race, religion or belief, disability, sexual orientation or age. If I subject you to intimidating treatment (by grabbing you by the lapels for example) that is not harassment if my reason for doing that is nothing to do with one of those protected characteristics.

Then there is harassment under the Protection from Harassment Act 1997. Harassment in this context is nothing to do with discrimination. The Act makes it a criminal offence to subject an individual to a ‘course of harassment’ and also creates a civil right to sue for damages. Although the Act was aimed at stalkers and oppressive neighbours it has been held to apply in the context of employment as well. The case law discourages, however, relying on this act for relatively minor issues. To amount to harassment behavior must be sufficiently serious to sustain criminal liability – although the recent case of  Veakins v Kier Islington Ltd shows the sort of situation where liability can arise. That was a case of sustained serious and deliberate humiliation of a subordinate which led to her suffering a serious bout of depression. The Court of Appeal held that the managers conduct had crossed the line from being merely unattractive or unreasonable treatment to being oppressive and unacceptable.

Personal Injury

That leads us to the next context in which bullying might be relevant – claims for personal injury. Ever since the High Court case of Walker v Northumberland County Council (transcript not available but there are lots of summaries of it online) employers have known that employees can sue for personal injury when their mental health is damaged at work. However it is only in very serious cases that ‘bullying’ can lead to this sort of claim. It is true that if a manager ‘bullies’ a subordinate that could amount to a breach of the duty of care. However for a claim to succeed the employee needs to show that the breach caused a reasonably foreseeable injury – and that is a high hurdle for the employee to jump.

Constructive dismissal

The final employment law arena for bullying is a claim for constructive dismissal. If the employee resigns as a result of a fundamental breach of contract by the employer then that can amount to a constructive dismissal which is usually held to be unfair. In this context the most common breach relied upon is a breach of the implied term of mutual trust and confidence. Bullying behavior can certainly amount to a breach of that term but usually only when the bully is the claimant’s manager rather than just a colleague. The majority of cases are actually about how the employer handled the employee’s complaint of bullying rather than being based on the bullying itself. In both types of case the test is not whether there is bullying but whether the employer’s behaviour is so serious that it fundamentally undermines the trust and confidence at the heart of the employment relationship. In any event, compensation is limited to loss of earnings and does not cover injury to feelings or emotional distress

Bullying is just a word

Note that in none of these legal arenas does the court or tribunal need to consider the definition of bullying. An employee who establishes that he or she is being bullied will not automatically succeed in any of these claims. Each has its own technical requirements and merely establishing that someone has been bullied does not of itself meet the requirements for any of these claims.

That’s why I have a problem with bullying. The plethora of bullying charities, helplines and consultancies out there can give the impression that bullying is a concrete term referring to a recognized legal phenomena. It isn’t. Bullying is just a word which can be used and abused to cover a very wide range of phenomena from the trivial to the extremely serious. In employment law situations we need to look beyond this label at the actual conduct complained about so that we can characterize it and fit it into the right legal category. This is not an attempt to minimise the seriousness of the things that can be done to employees by unpleasant or insecure colleagues, just a recognition that we need to focus on the detailed reality of what has happened and that the label of ‘bullying’ does not help us do that.

If anyone wants to set up a national breach of mutual trust and confidence helpline, I’d be happy to support it.

 

Political Correctness Gone Mad!

Published by DarrenN on February 21, 2010 in Employment Law. 0 Comments


I think I first remember hearing the phrase ‘its political correctness gone mad’ in a spitting image sketch in the 1980s. I can’t remember what the sketch was about – but the Daily Mail was mentioned.

As an employment lawyer who spends a lot of time training managers on discrimination issues, I know that ‘PCGM’ features strongly in many of their initial concerns about getting to grips with discrimination law and I hope that the training I give helps to dispel some of the myths that have grown up around what, I insist, is a very common sense area of the law.

Sometimes, however, the equality industry (and there is one) is its own worst enemy.  An article in the Sunday Times today reports that the Equality and Human Rights Commission is warning schools that a uniform policy that requires girls to wear skirts is potentially unlawful because it discriminates against transsexual pupils. The article goes on to bring in ‘Harriet Harman’s Equality Bill’ and rather gives the impression that one of its main provisions is to interfere in the right of schools to have a uniform policy.

This is not a made up story – well not exactly. The Equality Commission has indeed published guidance for local authorities that seems to make this claim and the guidance is being issued in anticipation of the Equality Bill which does change the law in relation to transsexuals. But a bit of context and perspective is needed.

First, the Equality Bill. The Bill widens slightly the definition of gender reassignment to remove the need for the process to be carried out under medical supervision. It also extends the public sector duty to promote equality (which currently covers only race, gender and disability) to cover gender reassignment (among other protected characteristics). Most importantly the concept of indirect discrimination is extended to cover people who have the protected characteristic of gender reassignment.

Indirect discrimination

This is relevant to the uniform issue because a school requiring girls to wear skirts is not directly discriminating against transsexual people – they are not being treated less favourably on the grounds of gender reassignment. Rather, the school has a rule which is applied to everyone – ‘wear gender specific clothes’ - which places transsexual people at a particular disadvantage (although the definition of transsexual may be a problem here - see below). This is potentially indirect discrimination and will be unlawful unless the school can show that it is a ‘proportionate means of achieving a legitimate aim’. This means that provided the school can explain the aims behind its uniform policy and show that the policy is a proportionate way of achieving that aim then the rule will be lawful even if it disadvantages transsexual people.

Equality Commission Guidance

The guidance that the Sunday Times focuses on comes in a 63 page document dealing with the provision of goods facilities and services to trans people and much of what it says is useful common sense stuff. Only six pages deal with schools.  Only 3 paragraphs and a good practice case study deal with the uniform issue. Congratulations are due to the Sunday Times for finding the ‘PCGM’ story tucked away in such a large document.

There is a problem with the guidance, however. It states ‘Requiring pupils to wear gender-specific clothes is potentially unlawful’ (page 43). Leaving aside the obvious qualification in ‘potentially’ the startling thing is that while the guidance seems to be saying that such a policy is unlawful because of its effect on transsexual people the reference it gives for that statement is a previous piece of guidance relating to sex discrimination not gender reassignment discrimination. Even that guidance is more than a little suspect as in a work context the courts have consistently upheld dress codes and rules of appearance that have different requirements for men and women. To suggest that they would take a different view in relation to school uniforms is entirely speculative.

 

Closely examined, then, the Equality Commission guidance does not in fact argue that a uniform requirement can amount to unlawful gender reassignment discrimination. And it is a good thing that it does not because there is a serious flaw in such an analysis. A transsexual person is defined in Clause 6 of the Equality Bill as a person who:

 

‘is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex’.

 

It is not just someone with gender dysphoria – it is someone who has at least decided to undergo gender reassignment. The Sunday Times quotes the Equality Commission as saying that individuals are protected “regardless of whether or not they intend to undergo, are undergoing or have undergone gender reassignment”  however  that phrase does not refer to the Equality Bill but the protection given by the Human Rights Act – you can tell because the phrase comes seven lines below the title ‘Human Rights Act’.

 

Blurring Human Rights and Discrimination Law

 

The Human Rights Act certainly protects people with gender dysphoria – but only in so far as it protects everyone. There is no specific human right being quoted here and there is no reasoned argument given to the effect that a school uniform actually interferes with the human rights of transsexual pupils or students. There is certainly nothing in the case law of the European Court of Human Rights which suggests that they would take such an approach.

 

Those parts of the guidance that describe ways in which schools can be sensitive to the needs of young trans people are absolutely fine and most open minded people would have no problem with them. However it is wrong to suggest that there is a realistic legal basis for saying that school uniform policies are illegal and yet the news story is based entirely on that suggestion.

 

So the Sunday Times have got it wrong – but the Equality Commission have not made their advice as clear as they should. Unable to say that a requirement for girls to wear skirts was unlawful they have hinted that it might be and then fudged the legal issue.  By overegging the legal side of the argument they have allowed another ‘PCGM’ story to hit the press and have everyone rolling their eyes and laughing cynically at the antics of the PC brigade. When that happens the cause of true equality suffers another blow.

Equality Bill Bombing Through The Lords

Published by DarrenN on February 1, 2010 in Employment Law. 0 Comments

The Lords Committee Stage of the Equality Bill has been making rapid progress and barring something dramatic happening it is clear that the Bill does now have time to make it onto the statute books. A number of amendments have been made - perhaps most notably a measure making it unlawful for employers to ask employees about their health prior to offering them a job unless the employer can show that the question is necessary to ensure safety, make adjustments or ensure that the employee is capable of performing key tasks.

A breach of this rule is not an act of discrimination, however, and is enforced by the Equality Commission rather than the individual employee - much like the current rules on discriminatory advertisements.

There was some news coverage of the Government being defeated on the issue of religious discrimination - particularly the ability of religious bodies to specify requirements related to sexual orientation as genuine occupational requirements. The Government wanted to limit the scope of the exception and also require the application of the requirement to be ‘proportionate’. This was defeated but in practice tribunals will have to apply the proportionality test in applying the requirements of the directive so the argument is somewhat academic.

The Government have also so far refused to extend discrimination to cover caste. While something may yet be included in the Report stage, the Government’s response so far has been rather weak - arguing that there is insufficient evidence that such discrimination is widespread. IF the Bill does not eventually include provisions on caste we can expect attempts to be made in the Courts to have the concept of race given a wide enough interpretation to include ‘descent’ as required by the UN Convention on the Elimination of all Forms of Race Discrimination.

The final area of controversy - yet to be debated -is the provision on positive action (feel free to call it positive discrimination - it makes no difference). This may well be given a rough ride as it is probably the aspect of the Bill most vehemently opposed by the Conservatives.

Once the Bill is passed the next issue is when will it come into force? The Conservatives are no longer voting against the Bill and have said a number of things in the House of Lords indicating that they are keen for it to be passed. Does this mean that they will be happy to bring the Bill into force in the Autumn 2010 as currently scheduled? The answer may depend on the fate of the positive action provision.