Author:Colleen Cleary, CC Solicitors, Claire Dawson, Slater & Gordon and Dee Masters, Cloisters.
Date: Sunday, July 1, 2018
Topics: Discrimination and equal pay
After #MeToo, sexual harassment allegations are on their way. The level of interest in the sexual harassment session at the 2018 ELA annual conference in May was testimony to how important this area has become. Here, the authors summarise the key issues tackled in their talk. The full paper is available on the ELA website.
‘Stretching’ the definition of sexual harassment
The non-comparative definition of sexual harassment means that it can arise in a wide range of circumstances (s.26(2) EA 2010). The unwanted sexual conduct can be aimed at men and women equally. The unwanted sexual conduct does not need to be ‘presented’ to the complainant; there simply needs to be proximity (Moonsar). A claim can be brought by a man who was offended by the sexual harassment of a woman (Noble).
When are employers vicariously liable?
Harassment is often intimate, sometimes there is a personal relationship and often the conduct occurs away from the immediate physical working environment. Employers will be vicariously liable under s.109 where harassment takes place in a situation that is an extension of the workplace (Stubbs).
At one end of the spectrum, the EAT has held that harassment did arise in a context that was an extension of the workplace where the victim and her harasser were ‘off duty’ and in a pub, but it was a work-organised social function, which took place immediately at the end of the working day (Stubbs). At the other end, the Court of Appeal concluded that there was no vicarious liability where the claimant was raped by a colleague in her personal quarters (accommodation that she was required to live in as part of her job), since they had met in a purely social capacity (Waters). Waite LJ said that they were essentially ‘in no different position from that which would have applied if they had been social acquaintances with no working connection at all’ (para 82).
The difficult cases fall into the grey area in between these two extremes. In Sidhu, the claimant was subject to a racially motivated assault by a fellow employee during a work-organised day trip. The tribunal concluded that the assault was not in the course of employment because the day trip was at a public theme park, it happened during non-working time and most of the attendees were friends and families, not employees. The Court of Appeal concluded that the tribunal’s decision was not perverse, but it also said that a different tribunal could have legitimately reached another view (para 28). In other words, there is not always going to be one correct answer to the question of vicarious liability.
Personal relationships cause even more problems. In Purkis, the EAT concluded that an employer was vicariously liable for harassment that took place at work, even though the claimant had previously been in a relationship with her colleague. The EAT placed reliance on the fact that the assaults had taken place in the context of the harasser calling the victim into his office and he was able to exercise that control over her in his capacity as a more senior employee (para 60). In other words, the dynamic of power defined the reach of s.109, even where there is a personal dimension.
It must be implicit within Purkis that the opposite might be true. That is, an assault at work could still be outside the course of employment if the context of the interaction was purely personal. For example, two people are in a relationship; they have an argument at home, which then spills out into the workplace and crosses into sexual harassment. An employer might well be able to argue that the workplace is coincidental; the context of the harassment is personal and not the employment relationship. In truth, employers may well have to delve very deeply into the nuances of relationships in order to understand their liability.
Are non-disclosure agreements still viable post-#MeToo?
The reaction to the use and involvement of non-disclosure agreements (NDAs) in sexual harassment claims has created a new debate over whether there is any place for them at all. Our view is that some form of NDA is often valuable for complainants too: they mean that all parties can move on without expensive, and often very personal, upsetting trial litigation, they allow confidentiality and they can therefore facilitate settlement agreements at an early stage. NDAs should not be banned outright, but we should limit their scope and ensure that those who sign them understand that they are limited.
Steps have been taken in particular sectors to stop NDAs being used inappropriately and such an approach should be encouraged. NHS employers received guidance following the Francis Report in 2013, which stated that in all cases where a confidentiality clause is included in a settlement agreement, it is essential that they make it explicitly clear within the written agreement that this does not prevent the employee raising legitimate concerns about a patient safety, or other issues, in the public interest.
In financial services, similar steps have been taken with the Prudential Regulation Authority and Financial Conduct Authority issuing rules on settlement agreements for certain regulated firms. Settlement agreements must expressly state that employees may make protected disclosures. The agreement must not include any warranties by employees that they do not know any information that could form the basis of a protected disclosure, or require them to state whether or not they have made a protected disclosure.
Can complaints be classed as protected disclosures?
The definition of sexual harassment is sufficiently wide that a complaint about sexual harassment could also amount to a protected disclosure under s.43B ERA 1996. An act of sexual harassment is a breach of the EA 2010 (a legal obligation) and may also endanger the health and safety of the complainant and colleagues. A grievance setting out an allegation of sexual harassment would probably, in the post-#MeToo world, indicate a reasonable belief on the part of the complainant that there was a breach of a legal obligation and that the disclosure will be in the public interest. In regulated sectors such as banking, medicine and the law, the public interest is even clearer as regulated persons are subject to conduct rules that are expressly made in the public interest.
The significance of pleading a complaint of sexual harassment as a protected disclosure is that it gives a complainant, who is subsequently dismissed, the opportunity to bring a claim for interim relief. This claim is only available to employees.
Interim relief can only be granted if the tribunal thinks that the claimant is ‘likely’ to establish at full trial that the protected disclosure was the reason (or principal reason) for dismissal (s.129(1) ERA). If the ‘likely’ test is met, the tribunal will ask the employer if it is willing to reinstate the employee or re-engage them. If the employer refuses, an order for continuation of the employment contract will be granted which gives the employee the right to continue to receive their salary and benefits pending the full hearing. This is a powerful remedy. Dismissal exacerbates the economic disparity between employee and employer and can make bringing a claim for sexual harassment even harder.
What lessons can we learn from Irish law?
Irish law offers some interesting ideas for those considering reform of the EA 2010. The test for sexual harassment differs in Ireland and is demonstrated in the Labour Court decision of Dublin Bus, where the court affirmed that there is no requirement to show that a perpetrator was acting in the course or scope of their employment. Instead, the proper test was whether the victim experienced harassment in the course of their employment.
This article was written by Colleen Cleary of CC Solicitors, Claire Dawson of Slater & Gordon and Dee Masters of Cloisters.
EA: 2010 Equality Act 2010
ERA: 1996 Employment Rights Act 1996
EEA: Employment Equality Acts 1998–2015
Moonsar: Moonsar v Fiveways Express Transport Ltd  IRLR 9
Noble: Noble v Sidhil Ltd UKEAT/0375/14/DA
Stubbs: Chief Constable of Lincolnshire v Stubbs  ICR 547
Waters: Waters v Commissioners of Police of the Metropolis  IRLR 589
Sidhu: Sidhu v Aerospace Composite Technology Ltd  ICR 167
Purkis: Thames Honda ltd v Purkis UKEAT/0265/13/RN
Dublin Bus: Dublin Bus v William McCamley (Dec No.E2015 100) 2016
The legal content in this article is believed to be correct and true on this date.