Practice - April 2008

Practice - April 2008

The Worrying Phenomenon of Harassment (TOP)

This month, there have been two cases where an employee has claimed that he has been harassed and, in both cases, a court has found that the conduct complained of did not amount to harassment.

In the case of Sunderland City Council v Conn, Mr. Conn had worked as a paver for Sunderland City Council. His line manager was Mr. Dryden, the site foreman. Mr. Conn brought a claim of harassment under the Protection from Harassment Act 1997 (PHA).

Mr. Conn might have used the PHA because the incidents all related back to 2000 and under the PHA, a claimant has 6 years to bring a claim. This makes the PHA potentially treacherous for employers, since old incidents can be dredged up. An additional burden for employers under the PHA is that they can be vicariously liable for the acts of their employees, whether or not they knew what their employees were doing.

The facts of this case were that Mr. Conn complained that Mr. Dryden had harassed him on five occasions. On one of these, Mr. Dryden asked Mr. Conn and two other employees to name those people who had been leaving the site early. Mr. Conn and the other two employees refused to ‘shop’ their colleagues. Mr. Dryden became angry and threatened to punch out the windows of the cabin and to report Mr. Conn and the other two employees to the personnel department.

When the case had been in front of the County Court, the evidence from the other two employees had been that they were not particularly bothered by the threats. Mr. Conn, though, had been bothered. The five incidents he listed combined direct verbal abuse with physical threats. The County Court found that this type of behaviour was potentially intimidating and was the sort of behaviour that might cause psychiatric damage to any worker. The Court of Appeal took a tougher line, though. One judge was especially irritated by Mr. Conn’s attitude to the window punching threat. He said,

‘What on earth is the world coming to if conduct of the kind that occurred in this incident can be thought to be an act of harassment?’

The Court of Appeal decided that harassment needs to be more than,

‘Irritations, annoyances, even a measure of upset [that] arise at times in everybody’s day-to-day dealings with other people.’

For behaviour to constitute harassment, the Court of Appeal decided:

• It needs to be ‘unacceptable’ behaviour, not just ‘regrettable’. Of course, what is ‘unacceptable’ will depend upon the context. The judgment pointed out that, ‘what might not be harassment on the shop floor or in the barrack room might be harassment in a hospital ward.’

• If the offender might well be liable to receive a punishment in criminal law for his unacceptable behaviour, then it is likely to be harassment.

• The unacceptable behaviour needs to occur at least twice. In this way, the harassment forms a ‘course of conduct’ which is a necessary prerequisite to bringing a claim under the PHA

• The Court was concerned with the ‘mental element’ of harassment. It declared that, ‘the alleged offender must know, or ought to know, judging by the standards of what a reasonable person would think, amounts to harassment of another.’

So, harassment is not always easy to prove.

My Advice

An employee need not use the PHA to bring a claim of harassment. Alternatively, if Mr. Conn had been eligible, he might have been able to bring a discrimination law claim. From an employer’s perspective, there are advantages to this second sort of harassment claim since the timing to bring a claim under discrimination legislation is 3 months after the incident. Employers need to beware, though, since there is no need, for a ‘course of conduct’ to have occurred. A one-off incident is enough to establish harassment in discrimination law.

It was a harassment claim that was based on discrimination that took place in the case of English v Thomas Sanderson Blinds Ltd, Mr. English brought a claim for harassment. However, he brought his claim under discrimination legislation, namely, that he had been harassed contrary to the Sexual Orientation Regulations. He claimed that he had been subjected to sexual innuendo by his work colleagues. These work colleagues were teasing him that he was homosexual because he had attended boarding school and lived in Brighton.

Ordinarily, Mr. English might have had no difficulty establishing that harassment had occurred. What he needed to show was that, according to Regulation 5(1) of the Sexual Orientation Regulations, there was

• Unwanted conduct by a person (A)

• On grounds of sexual orientation

• Which has the purpose or effect of violating a person’s (B’s) dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

But, in this case, Mr. English was not homosexual. His colleagues did not think he was homosexual. The Employment Appeal Tribunal decided that he could not bring a claim for harassment under the Sexual Orientation Regulations. The EAT held that he could have brought a case if he was homosexual. He could have brought a case if his colleagues perceived he was homosexual. But, all his colleagues perceived was that he possessed some of the stereotypical qualities associated with homosexual men. This was not enough for Mr. English to be protected under the Regulations.

My Advice

Mr. English was given permission to take his case to the Court of Appeal. At the moment, the law on who may or may not bring a claim is muddled. Employers would be well advised to stamp out persistent, unwanted teasing in the workplace, whatever its nature. Because of the impending appeal, Sanderson Blinds may not yet be off the hook. This is particularly so since The Equality and Human Rights Commission has intervened in the case since this decision.

Eleanor Williams, Darwin Gray

Things You Never See ‘Kingdom’ Do (TOP)

An ITV series “Kingdom” starring Stephen Fry has been derided as typical Sunday evening viewing. It is said to be lightweight, overly full of local rustic characters and with as much cutting edge as a blancmange. However, it has proved a major ratings success for Independent Television. Moreover, it is the British viewing public’s only glimpse of the life of a solicitor. Perhaps like me, against your better judgment, you end up watching it and rather than trying to follow the flimsy plot line you spend all your time criticizing its lack of reality. Here are a number of things that this supposed doyenne of East Anglian solicitors never seems to do:

• Any remunerative legal work

• Receive or send an e-mail

• See a client in his office - Stephen Fry normally goes to the picturesque home of the client; an ivy-clad country house or unbearably quaint seaside cottage

• Looking through job adverts in the Law Gazette on a Thursday morning

• Dealing with spurious complaints from his eccentric band of clients

• Discussing with his erstwhile clerk and partner (his brother who has returned from the dead) billing targets and chargeable hours for the next financial year

• Rushing down to the local County Court to issue proceedings the day before limitation expires

• Standing anywhere other than in a gloriously scenic coastal location (seems to spend a lot of time on the beach at Holme at low tide)

• Getting a roasting from the local judiciary

• Driving a sensible car – a Volvo estate perhaps

• Not wearing a pinstripe suit

Michael Imperato, Russell Jones & Walker

Out of Balance Regulation? (TOP)

In January 2008, I wrote a letter to the Gazette in response to an article entitled “Open and accountable’ by Peter Williamson, the Chair of the Solicitor Regulation Authority’s main Board. I questioned whether its policy to make regulatory decisions public in the interests of “transparency”, actually accords with the government’s five principles of good regulation that the SRA aspires to.

The government’s five principles are – proportionality, accountability, consistency, transparency and targeting. From a brief read on the Better Regulation Commission’s Website, it can be seen that, in the main, these are inwardly facing principles, there to govern a regulator’s relationship with those it regulates, rather than necessarily the public interest (albeit that this is understandably important from a regulator’s perspective).

Those interested can see a copy of that letter on my website. I thought it might be useful to expand on one of two of these principles, bringing in some examples.

Under ‘proportionality’, regulators should not use a ‘sledgehammer to crack a nut’. Under targeting, ‘enforcers should focus primarily on those whose activities give rise to the most serious risks’.

Consider these principles from the perspective of a solicitor who discovered that she had an old client account containing about £5.70 and Solicitor Accounts Rules returns had not been made since setting up a limited liability firm about three years ago. The solicitor and her accountant apologised to the SRA and immediately dealt with the money appropriately.

The SRA recently published its proposal that small amounts of client money, under £50 will (subject to future Rules) be able to be sent to the Solicitor’s Benevolent Fund, without having to get permissions from the SRA. One might have expected no action or possibly a Letter of Advice, both of which options are available to the SRA. However, this solicitor received a formal Warning and was ordered to pay the cost of the investigation at £300. She had a discretion vested in her practising certificate so that on the next renewal round any appropriate conditions could be imposed. When she came to renew her practising certificate she had to pay an additional £200 over the normal fee before her application for herself and her qualified staff would be considered.

Consider a firm in December who went to the Solicitors Disciplinary Tribunal on the single issue of misdescribing their telegraphic transfer fees as “disbursements”, when not the entire sum was paid to the bank. No dishonesty was formally alleged, but the view of the SRA is that this is making a “secret profit”- with all the connotations of impropriety that such a phrase might suggest. It is not a simple misunderstanding of how to describe an administration fee, which the Solicitor Accounts Rules say is a perfectly legitimate charge to make.

That particular firm was visited back in November 2005, by the Forensic Investigation Unit (FIU) of the SRA. The firm changed their procedures immediately. However, the approach of the FIU was that this was so serious an issue that it had to go forward to the SDT. The firm was not on that occasion visited by the Practice Standards Unit (PSU) of the SRA. The approach of the PSU at that time was to advise and indeed require firm’s to change their description but to take no further action.

From the firm’s perspective (and mine as expert witness in the case) the regulatory response depended, not on the seriousness of the issue, but upon which Unit within the SRA conducted the visit to their firm.

Under the principle of consistency ‘regulation should be predictable in order to give stability and certainty to those being regulated’. Also under transparency, ‘those being regulated should be made aware of their obligations, should be given the time and support to comply’, and ‘the consequences of non-compliance should be made clear’.

These are just two examples of many, but they are useful because they explain both ends of the regulatory spectrum and perhaps demonstrate a hardening in the approach of the SRA.

I was recently asked to assist a firm who had been visited by the PSU in 2007 to find that they faced a recommendation of a referral to the SDT under similar circumstances to the firm mentioned above.

Much of the evidence is, of course, anecdotal. However, in the monthly Summary of Performance on the Law Society’s website, the number of FIU visits which have resulted in “adverse reports” (which would attract some kind of regulatory response) increased from 56% in December 2006 to 71% in December 2007.

It must be remembered that the PSU are able to make both formal referrals through to other regulatory units within the SRA, which solicitors will be aware of, but also “intelligence” referrals which the PSU officer will not disclose to the firm.

Vanessa Shenton, via her business THE COMPLIANCE PARTNER provides regulatory and compliance advice and assistance to firms of solicitors. She can be contacted via her website, www.thecompliancepartner.com.

VANESSA SHENTON, THE COMPLIANCE PARTNER