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Discrimination, Bullying and Harassment
Search our in-depth knowledge centre for answers to your employment questions, plus hints and tips from the experts.
Every April, the Government reviews and makes changes to employment laws, including a review of financial rates. Below we set out a summary of the proposed changes coming into effect in April and beyond.
Bullying in the workplace is a serious issue for workers (29% of whom will experience workplace bullying at some point1), and for employers (bullying is estimated to cost UK businesses £18 billion a year2 and to contribute to the loss of over 17 million working days each year3).
In the modern workplace, fostering a culture of inclusivity and ensuring equal treatment for all employees is a crucial aspect of employment law. Discrimination based on disabilities (which can include mental health conditions) is strictly prohibited in the United Kingdom. This article explores the legal framework in UK employment law that safeguards employees against discrimination and highlights the consequences faced by employers who fail to uphold these important principles.
Creating a safe and respectful work environment is a fundamental aspect of UK employment law. This article explores the legal obligations placed on employers to address workplace harassment, highlighting the measures they should take to promote a culture of respect and protect their employees' mental health.
On 23 October 2024, the new, positive duty to prevent sexual harassment in the workplace comes into force. The extent to which a non-disclosure agreement can prevent a worker disclosing sexual harassment will be under the limelight.
In the employment context, the most common area for non-disclosure agreements is settlement agreements, under which an employee agrees to settle all claims in return for a compensation payment often where the employer has been unable to resolve a grievance including unlawful discrimination or sexual harassment.
On 26 October 2023, Parliament passed new legislation to amend the Equality Act 2010 to place a duty on employers to take reasonable steps to prevent sexual harassment of employees and workers during the course of their employment. The new duty comes into force on 26 October 2024.
From 6 April 2019, the compensation which successful claimants can recover for injury to feelings in discrimination cases will increase as the “Vento guidelines” – which employment tribunals follow when deciding how much to award for injury to feelings – have been increased. Unlike in unfair dismissal cases where only economic loss is recoverable, successful claimants in discrimination and harassment cases can recover compensation in the employment tribunal for non-economic loss – otherwise known as “injury to feelings awards.” Although there is theoretically no limit on the compensation which may be awarded in discrimination and harassment cases, employment tribunals do have to follow official guidelines when making awards for injury to feelings. These are the so called “Vento guidelines” which set out three bands of compensation, depending on the seriousness of the discrimination and its effect on the victim. Revised guidance has recently been issued Presidents of the Employment Tribunals in England and Wales and Scotland which should apply for the next 12 months. The bands are expected to be increased each year in line with the RPI index. New Vento bands published For claims which are made on or after 6 April 2019, the Vento bands which will apply in the event that the claimant is successful and an injury to feelings award is made, are increased as follows (the previous maximum amount is shown in square brackets): lower band: £900 to £8,800 [£8,600] (less serious cases); middle band of £8,800 to £26,300 [£25,700 ](cases that do not merit an award in the upper band); and upper band of £26,300 to £44,000 [£42,900] (the most serious cases), For the most exceptional cases it is possible, although highly unusual, to recover more than £44,000. Comment Claimants can bring claims against both their employer and the individual who carried out the alleged act of discrimination. The consequence of this change is that it will become even more expensive for employers who discriminate against staff – or do nothing to prevent individuals working for them from discriminating against others. It costs individuals nothing to start a claim in the employment tribunal, those who believe they may have suffered discrimination or harassment will now have even more reason to consider bringing legal proceedings. In addition, these figures are a helpful yardstick to those who may be negotiating with their employer in respect of an alleged act of discrimination or harassment. If you need advice on whether you may have a claim for discrimination or harassment, speak to one of our employment law experts today.
Contacting an employment lawyer can feel daunting if you have never done so before – it’s not the first thing people would choose to spend money on! Often the clients who come to us are experiencing turmoil – feeling desperate, anxious and alone – because of a problem at work and, they don’t know who else to turn to or, what else to do. Many clients feel frustrated if they have been left in a state of limbo by a workplace dispute and just want to find a resolution so that they can move on with their lives. For example, perhaps their employer has started disciplinary proceedings against them but these are dragging on and on. This is where the hugely experienced employment solicitors at Springhouse can help you get the results you want. It’s not our job to be judgemental about anything you tell us, our principle objective is to “fight your corner” and represent you in the best way possible in order to achieve the right result for you. Here are some of the specific things we can do to help. Anyone can do a Google search and see what the internet says but, we will take the time to fully understand the specific facts of your situation and think about how the law applies to them. We are all approachable and unstuffy and will be sympathetic to you personally. Part of our job is to assess what level of assistance you need with understanding the particular legal complexities of your situation and explain things to you accordingly. Reading text on a screen is no substitute for a bespoke, personal interaction – which our solicitors are trained to give. A disciplinary hearing, redundancy or other workplace conflict is a stressful situation. We can provide a buffer between you and your employer meaning you don’t personally have to have the conversations or deal with emails because we are doing so on your behalf. We can also provide you with reassurance about situations you may be facing by explaining what will happen, giving you an idea of the questions to ask and responses to give – even role playing scenarios with you if you feel this will help! In workplace conflict situations things often get very personal and, understandably, people take things to heart, get things out of perspective or generally get so emotional that they struggle to see the wood for the trees. Ultimately, this doesn’t help resolve things and can prolong the agony for all involved. We will analysis the situation in a more clinical way, looking for the best outcome for you at all times and keeping things professional and in perspective. Once we have assessed the facts of your case and talked to you about what result you are looking for, the next step is often writing to your employer. Receiving a letter from a law firm often has the desired effect of making an employer sit up and take notice. It demonstrates that you are serious and can assist in clarifying the issues. The next step may be to negotiate a settlement for you. While the final decision on whether to accept an offer is ultimately one for the individual, we can advise you on what a good deal looks like as well as conducting the actual negotiations (be that by email, phone or face-to-face) with your employer (or their adviser). Because our experienced solicitors have seen it all before, they are likely to have some creative ideas to help you achieve the outcome you want, which you may not have thought about. This may result in a better outcome for you, perhaps financially, for example by structuring your termination package differently you may save some tax or, simply relieving the emotional pressure on you by resolving the situation sooner than you could have done otherwise. If your employer offers to terminate your employment by paying you a termination package, you will usually need to enter a settlement agreement. We are qualified to give relevant independent legal advice and sign off such agreements, in order to ensure they are valid. Legal advice may be a distress purchase but, we believe that it is ultimately an investment you won’t regret making with us. We pride ourselves on delivering great value, creative and pragmatic advice to our clients.
We often see clients who are generally aggrieved about the way that their employer has treated them. Although they genuinely feel that they have suffered unfairness at work, unless this can be linked to a specific legal protection which an employee is eligible to claim for, there are no overarching laws ensuring a legal right to protection from unfair treatment from their employer. What legal protections might be relevant to unfair treatment? General unfairness is not itself a legal claim. Just because treatment is unfair it does not mean it is breaking any employment laws, however unjustly someone feels they have been treated. However, there are a variety of related claims that an employee can make against unfair treatment, such as harassment or discrimination. Where the client is still employed i.e. they have not resigned or been dismissed then depending upon the nature of the unfairness, they may have a claim for discrimination or harassment . Such claims must be because of, or related to a protected characteristic such as sex, disability, race, sexual orientation, religion or belief, marital status, maternity or gender reassignment. Discrimination will involve less favourable treatment because of a protected characteristic or, suffering disadvantage linked to said characteristics. However, fairness in this context does not mean treating everyone the same – difference in treatment does not break any laws as long as it is not less favourable or, in the case of indirect discrimination where it can be objectively justified for example, on the grounds of business needs. Where the complaint involves pay then an unlawful deduction from wages claim may be relevant. If differences in pay are linked to the gender of those doing certain jobs, an equal pay claim will potentially be appropriate, this may quantify as gender discrimination. Complaints relating to excessive work hours, lack of rest breaks or refusal to allow holiday could be dealt with as a Working Time Regulations claim while the National Minimum Wage Act might assist where the grievance concerns low pay. Issues around childcare, parental leave and pay and flexible working can be complex as there is a wealth of regulations governing this area, including discrimination laws. Consequently, we might be able to point out a legal entitlement of which a client was not aware as part of our advice. Often, if the business in which an employee works is sold, there can be issues with the new employer attempting to introduce changes to terms and working conditions. Employees are usually protected under the Transfer of Undertakings (TUPE) against detrimental changes in treatment in such a scenario. Last but by no means least, a basic breach of contract claim is often the best way of enforcing an individual’s rights and ensuring these are not eroded. This type of claim potentially covers a multitude of areas; the key is to be clear what the terms of the employment contract actually are. However, it should be remembered that there is no general contractual obligation on an employer to conduct fair treatment of their employees in the workplace. What about unfair dismissal? Where the individual is employed under a contract of employment i.e. they are an employee, there are laws protecting them against unfair dismissal. This protection does not extend to other categories of workers or those who are self-employed. This means that, once they have been employed at a single place of work for two years or more, they can only be dismissed by their employer for one of the five potentially fair reasons for dismissal , namely: redundancy, capability, misconduct, illegality, another substantial reason. In addition, an employer must follow a fair process before terminating their employment. Of course, an employer is still able to dismiss an employee unlawfully but, the individual will then have a claim in the employment tribunal (as long as this is brought, in most cases, within three months). Can a claim be made against constructive dismissal? The closest we come to a claim for general unreasonable behaviour at work is a claim for constructive dismissal . This may also be a claim for unfair dismissal, depending on whether the individual is an employee with enough qualifying service. An employee will often resign and claim constructive dismissal when relations have reached such a poor state, they feel they can no longer carry on working for the employer. A constructive dismissal occurs where an employee resigns in response to something the employer has done (or not done) which, is so serious, it amounts to a fundamental breach of contract. While this must be something more than mere unreasonable behaviour by the employer, it covers a huge and potentially unlimited range of conduct by the employer. Usually, the term of the contract which an employee claims is breached by the employer in this scenario is the implied term of trust and confidence. This is a term which is implied into all employment contracts and is something of a “catch-all”. For example, an individual who complained about bullying on several occasions, but their employer refused to deal with it might claim this was a breach of the implied term. From here, they may resign claiming constructive dismissal as they felt unable to continue to work in a hostile environment.
Harassment, as defined in the Equality Act 2010 is unlawful. If you can show that you have suffered harassment in the workplace carried out by a colleague, you will be able to bring a claim against your employer. What is the legal definition of harassment? The legal definition of harassment is found in section 26 of the Equality Act 2010. Harassment involves subjecting individuals to unwanted conduct which is related to one or more of the relevant protected characteristics . The said characteristics which are relevant for a harassment claim are: age disability gender reassignment race religion or belief sex sexual orientation It should be noted that the person bringing the complaint does not have to have the said characteristic themselves. The phrase “related to” is very broad and will include cases where: the protected characteristic is possessed by someone with whom the claimant is closely associated (associative discrimination); the harasser mistakenly perceives the victim to possess the protected characteristic; in cases where the misconduct is not aimed at the claimant but they are exposed to it and it has the prohibited effect on them e.g. an employee overhears their manager making racist comments to a colleague The misconduct must have the purpose or effect of: violating the victim’s dignity; or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim. This is likely to involve showing that the conduct had a significant impact on the victim. Trivial acts in the workplace causing minor upset will not satisfy the legal definition of harassment and such complaint will not stand. Effect on the victim In deciding whether the conduct amounted to harassment, an employment tribunal must consider: the perception of the victim the other circumstances of the case whether it is reasonable for the conduct to have had that impact on the victim A victim’s claimed reaction to the unwanted conduct is unlikely to qualify if it is hypersensitive. It is not enough for the victim simply to claim that the unwanted conduct violated their dignity or created an environment in the workplace that was intimidating, hostile, degrading, humiliating or offensive to them. The tribunal must also decide that it is reasonable for that to be the impact (taking the victim’s perception into account). If the result of the conduct is to violate the victim’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment, then the perpetrator may be liable even if they did not intend the conduct to have that effect. Misconduct of a sexual nature There is separate type of harassment claim which may be made where there has been unwanted conduct of a sexual nature. This occurs where: The perpetrator engages in misconduct of a sexual nature That conduct is unwelcomed by the victim Said sexual misconduct has the purpose or effect of violating the victim’s dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim. It should be noted that this type of harassment does not need to be “related to” any of the protected characteristics. The crucial point is that the conduct is sexual in nature – this alone is enough to found a complaint of harassment. Examples of this type of harassment include inappropriate physical contact, sexually suggestive remarks and sexually indecent acts in the workplace. Rejection of, or submission to, harassing conduct The third type of harassment protection prevents less favourable treatment of an individual, because they rejected or submitted to conduct of a sexual nature or misconduct relating to either sex or gender reassignment. For example, if a female employee is subject to a poor performance review as a result of consistently rebuffing a manager’s sexual advances, this would be considered as harassment at the hands of her employer. Employment tribunal claims A claim for harassment against an employer and, if appropriate, the employee who actually carried out the unwelcome conduct can be brought in the employment tribunal. Although an employer is vicariously liable for the actions of their employees and agents for acts of harassment, they are no longer, on the face of it, liable for harassment by third parties such as customers or other visitors. An employer will have a defence against a claim of harassment by one of its employees if they can show that they took all reasonable steps to prevent the harassment or misconduct. Claims can be brought in the employment tribunal without paying any fee . There is no minimum amount of service required before a claim can be brought i.e. an employee who suffered harassment on their first day of employment could bring a claim. Neither is there any need for an employee to resign before they bring a claim – they may bring a claim against their employer and remain in employment. In this scenario, they will be protected from victimisation in the workplace. Compensation as a result of a workplace harassment claim An employee who was successful in their harassment complaint against an employer would be able to recover compensation. There is theoretically no limit on how much a tribunal can award in such cases. However, in cases where there is no economic loss e.g. where the employee is still employed, any award will be limited to injury to feelings. Tribunals must follow the so-called Vento guidelines in making such awards. Under the Vento guidelines compensation is awarded depending upon the seriousness of the case and currently ranges from £900 to £44,000. For further information on harassment and discrimination in the workplace, please see our previous article on compensation guideline updates.