Harassment in Workplace Issues - Essay Example

? Harassment in Workplace – An Analysis “Answer to Question When an employer infringes the employment contract provisions by dismissing the employees or compels him to leave the job, then wrongful dismissal occurs. In UK, the resignation by constructive dismissal in normal parlance would mean a wrongful dismissal. Where an employee is fired by an employer or compels him to leave the job without following proper guidelines, it is known as unfair dismissal. Frequently, unfair dismissal occurs when there is no infringement of employment contract or wrongful dismissal. An employee with a minimum of one-year of continuous service can make a claim for an unfair or wrongful dismissal. An employee with less than one-year service can make a claim under common law provisions only. It is to be observed that the wrongful dismissal covers only the compensation of employee’s pay for the notice period. (“Thavarajah 2008: 57”). In constructive dismissal, there will not any dismissal from the employer. Actually, in such cases, the employee is driven out of his employment due to the scenario at his workplace. (“Thavarajah 2008: 11”). In Bouzourou v The Ottoman Bank1, Privy Council was of the opinion that an employee to consider himself as being terminated , if his transfer to another place made him vulnerable to disease or expose him to an aggressive peril of violence . (Thavarajah 2008: 10). In Wang Chee Hong v Cathay Organisation, it was held that in case of a transfer, which pushed back the plaintiff to a place of fewer responsibilities though with the analogues’ conditions where the plaintiff refused to accept that transfer is nothing but a dismissal. Thus, such relegation of accountability with its outcome of frustration and humiliation and loss of reputation among colleagues made it not possible for the plaintiff to continue the service in the organisation and hence, it should be regarded as dismissal. The identical views were also expressed in JF Bumpus v Standard Life Assurance Co Ltd2, Cox v Philips Industries3. (Thavarajah 2008: 11). The constructive unfair dismissal has been explained in Western Excavating (EEC) V Sharp4, where it would be regarded as unfair constructive dismissal if an employer is culpable of infringement, which goes to the very root of the contract or if he had shown an inclination no longer to be accountable by it. In such scenarios, the employee is empowered to consider the contract as ceased and himself being dismissed. In United Bank v Akhtar5, it was held that in a bank employee’s service contract stated that he could be transferred to any of its bank branches within the UK, and the employee turned down to move to Birmingham from Leeds branch at a shorter notice and hence resigned from the job and later, she claimed the constructive unfair dismissal. It was held by EAT in this case that the employee had been constructively dismissed, and his demeanour did not warrant that dismissal. (Scrope & Barnett 2008: 211). In Cape Industrial Services Ltd v Ambler6, when considering whether there has been an unfair constructive dismissal, the Court of Appeal was of the view that the following had to be taken into consideration. What were the significant conditions of the contract seemed to be infringed? Whether the details of the breaches have been made out. Whether breaches are fundamental in nature. If so, whether an employee has been driven to resign due to such a breach. Whether the employer has demonstrated any probable fair grounds for the constructive dismissals. Whether, in such scenario, the employer has acted unreasonably or reasonably in treating the grounds as an adequate one warranting dismissal. (Scrope & Barnett 2008:211). In Green v DB Group Services (UK) Ltd7, HC, compensation for stress oriented injury can be very liberal and in this case, a bank was held vicariously accountable for a continuous campaign of harassment and bullying witnessed by a female secretary who was awarded damages in excess of ?850,000. (Scrope & Barnett 2008:133). Applying the decision held in Wang Chee Hong v Cathay Organisation, the refusal of Ms Indiscreet request to transfer to another branch would result in frustration and humiliation and loss of reputation among colleagues, and it is not possible for the indiscreet to continue the service in the organisation and hence, it should be regarded as dismissal. Applying the decision held in Green v DB Group Services (UK) Ltd, both the Head of Dillydale Accountants LLP and the Head of the Human Resources Department Ms. Chatterbox leaked the Ms. Indiscreet’s pregnancy at the Barnsley branch of the firm thereby creating an uncomfortable working atmosphere for Ms Indiscreet to work at the Barnsley branch. Due to the above reasons, it can be regarded as constructive dismissal. “Answer to Question 2” The Advisory, Conciliation and Arbitration Service (ACAS) was established as a Royal Commission by the Labour government in September 1974. ACAS is an independent of direct ministerial intervention in labour relation matters. The main aim of the ACAS is to encourage a good practice, to offer advice and information, to engage in conciliation in complaints to employment tribunals, to mediate in the cases of collective disputes and to stop and find a solution to employment dispute. ACAS has brought out its Code of Practice on Disciplinary and Grievance Procedures, which offers guidance on superior exercise in grievance and disciplinary issues in employment, and it is compulsory for the arbitrators appointed by ACAS to follow these guidelines to decide the cases under the ACAS Arbitration Scheme. Dillydale Accountants LLP had frozen the pay of Ms Indiscreet without resorting to ACAS counselling procedure. In such cases, the conciliation officer must have tried to find an amicable solution between the parties if they acknowledge for counselling by ACAS. In unfair dismissal cases, the conciliators of ACAS will try to find the chance for re-engagement or reinstatement on suitable conditions. (Gennard & Judge 2005:172). On receipt of the complaint from Ms Indiscreet, the employer should have arranged a meeting for the employee to illustrate her grievance and how they deem it to be solved. The affected employee (Ms Indiscreet) can bring a companion to assist her to a grievance meeting whenever there is a complaint against the employer under the Employment Relations Act, 1999. If the Dillydale Accountants LLP does not follow the guidance set out in the code, the Tribunal has the authority to increase the award up to 25% which they supposed to make in favour of Ms Indiscreet. The ACAS Code has included the following procedures that to be followed while dealing with the grievance raised by Ms Indiscreet. It should maintain the confidentiality of any complainant. In this case, there has been leakage of the news of pregnancy of Ms Indiscreet. There should be a reference to the grievance procedures, which includes timescales for taking action on the same. The firm should have well defined investigation procedures which include timescales for action. The firm should provide training to its managers for stopping bullying and harassment at work. Further, it should offer safeguard from vicitimisation. Thus, the firm should have well defined procedures and policies for handling any disciplinary and grievance issues like sexual harassment and bullying. Staff like Ms Indiscreet should be aware to whom they should approach when they face sexual harassment or bullying at work. The demeanor of employers and senior managers is significant in such issues. Vibrant management can sometimes involve indirectly into bullying demeanor, which is definitely against the ACAS code of conduct. If the firm follows a culture where there is regular consultation with the employees and if the issue is deliberated now and then, it will result in less harassment and bullying in a workplace and if the management like Dillydale firm where authoritarian management style is followed ?then bullying at the work will be a regular feature. (www.acas.org.uk 2012). In the given case, Dillydale Accountants LLP does not have any grievance procedure for handling employee’s grievances as needed by ACAS code. As the Dillydale Accountants LLP does not follow the guidance set out in the ACAS code, the Tribunal has the authority to increase the award up to 25% which they supposed to make in favour of Ms Indiscreet. “Answer to Question 3” Section 40 of the Equalities Act 2012 bars an employer involving in unwanted demeanour which infringes the dignity of an employee or indulging in a hostile, intimidating, shameful, demeaning or offensive atmosphere to the employees. This section offers safeguard not only against harassment in the workplace but also offers relief to the employees where his dignity has been infringed due to witnessing such harassing and humiliating act.( “Wadham et al 2012” ). If the demeanour has the impact of infringing an individual’s dignity or creating an offensive atmosphere, then , there is no necessity to demonstrate that such action did , in fact , have the impact and the perpetrators of such an act would be held responsible for such an act even if that was not their intention. Section 40 of Equalities Act 2010 states that an employer should not discriminate his employee or an applicant to the employment. Under sub-section (1) of the section 40 of the Equalities Act 2010 stipulates that employer should see that his employee is not harassed by the third party also. Further , if an employer fails to take preventive steps to bar the third party to harass his employee, then , the employer will be held accountable .Third party is one who is a person who is either the employer or employee .(Legislation.Gov.UK 2012). Section 40 also prohibits where any individual is treated less favourably since they have rejected or submitted to sexual harassment or harassment pertaining to gender or sex assignment. For instance, if a manager has demanded some sexual favour from a female staff, and if she turns down the same, she can fight a claim of harassment if she is later denied the promotion due to this. In English v Sanderson Blinds Ltd8, an individual was continuously subjected to harassment where his colleagues ridiculed him as a homosexual. This continued for long time despite the fact the persons who indulged in this knew that he was not a gay. The court acknowledged that the treatment could be tantamount to harassment associated with sexual orientation. (Kumra & Manfredi 2012:34). In this case, Ms. Chatterbox action of spreading news of Ms. Indiscreet’s pregnancy and questions were raised amongst the staff Dillydale Accountants LLP as to who the father might be as evidenced through text messages and emails given the night she spent with Mr. Strong, speculation spread throughout the firm as to whether the father was Mr. Fussy or Mr. Strong. This falls under section 40 of the Equalities Act 2012 which bars an employer (Dillydale Accountants LLP) involving in unwanted demeanour which infringes the dignity of Ms Indiscreet or indulging in a hostile, intimidating, shameful, demeaning or offensive atmosphere to Ms Indiscreet. Applying the principle held in English v Sanderson Blinds Ltd, the actions and omissions by Dillydale Accountants LLP constituted breaches under section 40 of the Equality Act 2010. “Answer to Question 4” Under constructive unfair dismissal, an employee can resign the job and make a claim by arguing that he has been constructively unfairly dismissed from the service. An employee can make two claims under the above: both under unfair dismissal and constructive dismissal. Under constructive dismissal, the available remedy is the sum analogues to the payment that would have been paid during the notice period at the time of resignation from a job. The chunk of compensation available under the unfair dismissal would consist of monetary loss symbolising loss of pay from the time of dismissal up to the point of new employment is taken. (Jolly 2009:358). The claim under the constructive unfair dismissal is consisting of two chief parts namely the compensatory award and the basic award. The basic award is analogues to that of payment under redundancy. The basic award is arrived at by calculating the multiplier which is calculated by multiplying one’s age with the number of years of service put in by an employee and with the help of product arrived, one has to find out the multiplier from a table given for this purpose. For instance, If Ms.Indiscreet is aged 30 and worked for 5 years for the firm, then, one has to multiply the age with that of the number of years of service and with the resultant, you have to find out the multiplier from the table. If her gross weekly wage is more than ? 430, then, it should be capped to ? 430. Then, you have to multiply the gross weekly wages with that of the multiplier so arrived which will give the amount of basic award payable to Ms. Indiscreet. The compensatory award is employed to evaluate the employee’s losses from the date of her dismissal till these losses will come to an end due to finding of a new job or the date of Employment Tribunal Proceedings commences. The compensatory award is divided into two parts namely continuing and on-going loss and prescribed loss. The way of arriving at the Prescribed Loss varies footing upon whether Ms Indiscreet has joined in a new job by the time during the commencement of hearing of the case by the Employment Tribunal. If Ms Indiscreet’s wage in the new job is higher than her previous employment, there would be no compensation payable by the firm. However, if Ms Indiscreet’s wage is less than her previous employment ?then, she is entitled to the difference between her gross weekly wages at her new job and her gross weekly wages with her previous employer. Further, the losses can further subdivided into on-going loss and continuing loss. Under contractual benefits loss, the loss is calculated from the date of Ms Indiscreet’s dismissal up to the date of award made by the Employment Tribunal. Some illustrations of contractual advantages include your contractual rights to the share of profits of the firm, her living allowance, her car allowance, her annual bonus, her medical allowance, her commission and her pension privileges. Ms Indiscreet is eligible to claim the award for her statutory rights, which is currently capped at ?300. (Redmans Solicitors 2012). List of References Gennard J & Judge G. (2005). Employee Relations, 4/E. London: CIPD Publishing. Jolly, A. (2009). Handbook: Inspiration and Advice from Successful. London: Kogan Page Publishers. Kumra S. & Manfredi S. (2012). Managing Equality and Diversity: Theory and Practice. Oxford: Oxford University Press. Legislation.Gov.UK. (2012) Equalities Act 2010. [online] available from [accessed on 8 January 2013] Redmans Solicitors. (2012). Constructive Unfair Dismissal. Valuing Your Claims. [online] available from < http://www.direct2lawyers.co.uk/employment-law/constructive-unfair-dismissal-claims-valuing-compensation> [accessed 8 January 2013] Scrope H & Barnett, D. (2008). Employment Law Handbook. London: Henry Scrope. Thavarajah, T. (2008). Constructive Dismissal: Commentaries and Cases. Singapore: CCH Asia Pte Ltd. Wadham J, Ruebam D, Robinson A & Uppal S. (2012). Blackstone’s Guide to the Equality Act 2010; Oxford: Oxford University Press. www.acas.org.uk. (2012). Bullying and Harassment at Work. [online] Available from , accessed on 8 January 2013] Read More