Workplace Investigations

If you have ever had to deal with a workplace complaint, you will know the problems and pitfalls with conducting internal investigations.

Join us at our investigation’s seminar for advice on the three main forms of investigations: grievances, disciplinaries and whistleblowing.  Our investigations expert will give you their top ten tips for conducting successful investigations.

Breakfast and refreshments will be provided before the seminar.

Date: Thursday 14th March 2019
Venue: Slater and Gordon, Manchester
Time: 08:00 – 10:00
Cost: Free of Charge
CPD: 1 hour

Speaker

Mugni Islam-Choudhury
Mugni is an experienced employment law specialist who has conducted employment-related hearings in the ET, EAT and civil courts for 20 years. He is a specialist in complex employment litigation and has particular interest and expertise in dealing with high value claims, particularly in the field of discrimination, whistleblowing and/or where there is a High Court connection. Recently, Mugni has been appointed as investigator in a number of whistleblowing complaints and grievances.

Register here

Disability Discrimination Seminar – A Practical Guide

Disability discrimination can be an often misunderstood area. NWELG are hosting an event to unravel some of the myths and pitfalls of handling disability discrimination complaints. The session will be a practical and interactive one lead by experts in the field.

Wednesday 26th September @ Kelloggs, Manchester

Location: Kelloggs, Orange Tower, Media City UK, Manchester, M50 2HF

Register here

Programme

08:45 – 09:15 Registration

09:15 – 09:45 Top tips on handling disability discrimination complaints, presented by Alexander Mellis

09:45 – 11:00 Workshop: An opportunity to discuss, explore and apply the principles behind disability discrimination in practice, presented by Helen Barney

Speakers

Helen Barney – Helen is a modern, approachable barrister who is renowned for her excellent client-care skills and working in partnership with those that instruct her. She is well adept at explaining complex legal arguments in simple plain language and brings to every claim sound case management and tactical awareness.

Alexander Mellis – Alex has a mixed practice in employment and personal injury law. He can be found in court or tribunal on a near daily basis undertaking both interim and final hearings as well as having a busy paperwork practice.

Register here

Procedure: Interim Relief

When considering the postponement of an interim relief hearing, can counsel’s availability amount to “special circumstances”?

Yes, held the EAT in Lunn v Aston Derby.

Interim relief is obscure. It’s a special remedy that employment tribunals can grant if an ET1 is presented within seven days of dismissal, and the Claimant can prove (at a very swiftly arranged hearing, usually within days) that s/he will probably establish that the dismissal was on grounds of whistleblowing or trade union activities at a full hearing. When interim relief is granted, a ‘continuation of employment’ order is made, meaning they are guaranteed their salary up until the final hearing – even if they ultimately lose.

Mr and Mrs Lunn pursued whistleblowing claims and included applications for interim relief in their ET1s.

The interim relief applications were listed for hearing on a date the Claimants’ direct access barrister could not attend due to prior court commitments. Their barrister requested that the hearing be relisted and provided dates of availability as soon as five days later.

Pursuant to s128(5) Employment Rights Act 1996, the tribunal should not postpone such hearings “except where it is satisfied that special circumstances exist which justify it in doing so”. The tribunal refused the Claimants’ application for postponement on the basis that counsel’s convenience did not amount to special circumstances.

The EAT disagreed and held that, although not usually considered as such, counsel’s availability was a special circumstance in this case as the Claimants were faced with a real difficulty of finding alternative representation at such short notice. The special circumstances did not have to be ‘exceptional’.

The EAT found that the tribunal had fettered its discretion. It went further and found perversity on the basis that there was a lack of prejudice to the Respondents, a very short delay and the interests of justice so overwhelmingly fell in favour of granting the application.

Case Summary by Caroline Jennings.

Caroline is part of the Employment Group at No5 Barristers’ Chambers. 

Sexual Harassment in the Workplace. What does the law actually say?

sexual harassment
The news is currently awash with allegations of sexual harassment and sexual assault in the media and in politics. Commentators make the point that it is endemic and not confined to those sectors, but all places of work.

There is, of course, a wide range of conduct, ranging from inappropriate comments, to inappropriate physical contact, and ultimately to serious sexual assault and rape. Some conduct is one-off, whereas in other cases it is sustained. As an employment barrister, I’ve been involved in cases involving all these types of conduct. Sexual assault is a criminal offence, usually requiring a criminal investigation by the police. But what protections are there for victims from an employment law perspective? What should victims do? How should employers address these issues?

Legal Framework

In the employment law context, the Equality Act 2010 (“EA 2010”) makes it unlawful to sexually harass employees, workers and agency staff. In fact, it covers a wide range of harassment including on the grounds of age, race, sexual orientation and disability. Claims are brought in the Employment Tribunal and the victim of harassment can bring a claim against the employer and the individual named perpetrator.  There are strict time limits, with claims needing to be brought within 3 months of the last act of harassment, and after having contacted ACAS for Early Conciliation.

Under section 26 EA 2010, sexual harassment is defined as conduct related to sex which has the purpose or effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim, taking into account the victim’s perception, all other circumstances of the case, and whether it is reasonable for the conduct to have that effect. So, there is a subjective and objective element to it.

In Richmond Pharmacology v Dhaliwal [2009] IRLR 336, the Employment Appeal Tribunal clarified the law and stated that the approach to be taken to harassment claims should be broadly the same, regardless of the particular form of discrimination in issue. The EAT observed that, in each context, “harassment” is now specifically defined in a way that focuses on these elements:

a.              unwanted conduct;

b.              having the purpose or effect of either:

i. violating the individual’s dignity; or

ii. creating an adverse environment for the victim;

c.              related to the prohibited grounds (i.e. of sex, race and so on).

What if the victim has engaged in “banter”?

It is quite common for perpetrators to argue that the victim participated in the conduct complained about because they engaged in “banter”. However, the fact that an employee engages in “banter” is not a defence. In the EAT case of Smith v Ideal Shopping Direct Ltd UKEAT/0590/12, the claimant was openly gay and would engage in a certain amount of banter, e.g. referring to himself as ‘Big gay Wayne’.  However, rather more pointed remarks about his homosexuality started to be used by other employees. One highlighted in the case was the reference to him with some regularity as ‘Val’s bitch’ (Val being his line manager). After his dismissal he brought tribunal proceedings for harassment. The tribunal rejected the harassment claim. They accepted that in isolation the words used would be homophobic, but held that this was outweighed by his own participation in the language used generally.  However, the EAT disagreed with the Tribunal on this point, holding that, although, in principle, a person may not be able to object to conduct that they have willingly participated in, there can still be a line to be drawn when the conduct (here language) goes beyond what that individual was agreeing to.

What if the conduct wasn’t directed at the victim?

Provided the other requirements are met, the conduct in question does not even have to be specifically directed at the complainant. In Moonsar v Fiveways Express Transport Ltd [2005] IRLR 9, EAT, the downloading of pornographic images by Ms Moonsar’s male colleagues, who viewed them in her presence, was held to be sufficient to amount to unwanted conduct, as the images were viewed on screens in a room where she worked and she was aware of what was happening, even though it was not directed at her. Therefore, although the “purpose” was not to violate her dignity, the “effect” of it did. This deals with the sort of behaviour sometime described as “locker room banter” where the victim is not specifically targeted.

What should the victim do?

In any case where someone has been harassed it is important that they raise this with the employer. Most reputable employers will have Grievance and Anti-Bullying and Harassment policies to investigate concerns.

The employee should consider speaking to any confidential advice lines. Many employers offer access to such services.

In cases involving sexual assault, they need to consider reporting matters to the Police.

Ultimately, they may wish to claim compensation in the Employment Tribunal. To do so, they must bring their claim within 3 months of the last act of harassment, and contact ACAS for Early Conciliation.

What should the employer do?

The first consideration should be to ensure that policies are up-to-date and fit for purpose to investigate concerns and deal with cases where harassment is found.

Employers should train their staff on equal opportunities, and in particular what constitutes unacceptable behaviour in the workplace.

Employers should also consider whether someone from the workforce should be appointed (perhaps with an HR background) as a “Anti-Harassment Guardian”, as a person that staff can go to if they have concerns or wish to raise a complaint.

Finally, employers need to investigate concerns and take appropriate action. There is no room for harassment in the workplace. Employers need to take proactive steps to ensure that any such behaviour is no longer tolerated

Mugni Islam-Choudhury
Barrister (specialising in Employment Law)

No5 Barristers’ Chambers
01.11.17