Incidents of Verbal and Physical Harassment by Workers - Case Study Example

Task 1. Case Case Reference: Jones V Tower Boots Ltd [1997] IRLR 168 Court of Appeal Issue: The case relates to deciding whether incidents of verbal and physical harassment by workers against colleagues represent the acts committed in the course of employment and hence the employer should be treated as vicariously liable for such incidents. Facts of the case: In the course of employment as a machine operative which lasted for one month, with the respondent company, Mr. Jones born to a white mother and a black father was subjected to various physical harassments and also was subjected to verbal harassment by his work colleagues calling him by different undesirable names. An Employment Tribunal (ET) found that Mr. Jones had been the subject of physical and verbal racial harassment and that the employers can be held vicariously liable for such incidents. However on appeal by the employers, the Appeal Tribunal held that the employers were not vicariously liable as the harassment was not done 'in the course of employment' under section 32(1) of the Racial Relations Act 1976 (RRA). The EAT held applying the test in Salmond on Torts. Held: The Appeal Court held that the EAT had erred in law and restored the finding of the ET that the employers can be held vicariously liable for the acts of harassment done by the workers. 2. (i) : The counsel for the employers argued that the liability for the acts done by the other employees which had the effect of causing physical and verbal abuse to Jones cannot be put on the employers as such acts cannot be taken as having been done 'in the course of employment' under section 32 (1) of the RRA and therefore there is no question of vicarious liability to the employers. 2. (ii): The contention of the counsel for the employer arguing that the tortuous acts of the other two employees cannot be held as 'acts done in the course of employment' will not hold ground, as the counsel based his argument on the basis of judgment in the case of Irving v The Post Office1, in which case there is no indication that the court relied on the subsection (1) of section32. Hence the counsel for the employer has based his argument on a wrong footing and hence his argument cannot be held valid under the law. 3 : The issue before the Court of Appeal was not to find whether treatment given to Jones can be regarded as a 'racial harassment'. The sole ground of appeal was that the industrial tribunal had been wrong to regard the racial harassment as having been "done by a person in the course of his employment" for the purposes of section 32(1). 4. (i) : Waite L.J was convinced about the representation of the counsel for the employee on pointing out that there are distinctions that greater remedies are available under the law including damages for the injuries to the feelings than those that can be claimed under Tort against an employer under the common law and "the total absence from the concept of vicarious liability in tort of any provision corresponding to the reasonable steps defence under section 32(3)." Waite L.J preferred the argument of Mr. Allen to that of Mr. Buckhaven due to the fact that there are no similarities between the statutory construction and the purposive construction on a plain reading of the section 32 (1) and that the phrase 'course of employment' is subjected to the gloss imposed on it in the context of vicarious liability on the common law context. 4. (ii). Mr. Allen argued substantial differences occur when the vicarious liability for Tort under the common law is considered against the statutory concept of section32. Counsel further submitted that the above position of the employers' liability under claim of Torts is to be contrasted with that under section 32 (1) of the RR Act where every action of a person in the course of employment are attributed to the employer "whether or not ... done with the employer's knowledge or approval." This argument of Mr. Allen is having substance and hence is preferable than the argument of Mr. Buckhaven. 5. : Waite L.J observed that the current legislation had the purpose of working upon the minds of men and women for bringing about changes in their attitudes towards the social consequences arising out of sex or racial discrimination. The purposive construction of such legislation intends to bring the required changes by educative, persuasive or wherever necessary by coercive processes and all these measures have been interconnected with a code of practice to be recognized by the courts and tribunals, as has been laid down in the case of Savjani v. Inland Revenue Commissioners2 In the context of linguistic construction, the word and phrases that have acquired significantly familiar and different meanings by decided case laws as applied to the liability of the employers under the doctrine of tortuous liability under common law. Hence Waite L.J concludes that applying the linguistic construction principle, the law can not be interpreted to have a different than the intention of the Parliament to have the same meaning when applied to the liability of the employer in the context of discrimination in the employment field. 6. : According to Waite L.J the case of Irving v the Post Office has made no reference to section 32 of RRA. As per Judge Waite the reference to the vicarious liability of the employers as applied in the law of Tort was found in the judgment of the Post office case not at the intent of the judges but because the counsels dragged that piece of legislation in to their arguments. Hence according to Waite L.J the judgment in the Irving v Post office cannot be construed as an authority for relying on for the purposes of taking a decision as to the employers' vicarious liability in the case of Jones v Tower Boot. The judge is correct in assuming this in the light of the discussions above. 7. : The Appeal Court observed that hence forth the tribunals are at liberty to make their own inferences in cases where a decision is to be taken in interpreting the phrase 'in the course of employment' subject of course to the premise that the tribunals are bound interpret the phrase in the same sense as any ordinary laymen would understand it. The ruling of the Appeal Court made in explicitly clear that the meaning of the phrase 'in the course of employment' is to be arrived at on the basis of the facts and circumstances of each case presented to such tribunals with a sound interpretation that is 'unclouded' by the similarity drawn from the law of vicarious liability under law of Tort. 8. (i): A plain reading of the relevant sections is necessary to understand the relationship between them. The statutory purpose of the Racial Relations Act 1976 is the eradication of racial discrimination in any form. The plain reading of the all the three sections reveal that the linguistic purposes of the Act which coincides with the statutory purpose. While section 1(1)(a) defines the scope of the Act, section 4 deals with the application of the provisions to an employment situation. Section 32 narrates the remedies available to the employer in connection with any alleged racial discrimination. Hence in respect of addressing the common issue of eradication of discriminations all the three sections should be read in conjunction with each other and are related per se. 8.(ii): Section 32 assumes particular importance in this case because of the fact the section provides for the remedies and defences available to an employer who is comprehended to have committed any racial discrimination. While the original cause of action was brought by Jones under section 1(1)(a) and under section 4(2)('c), the defence from the employer was sought under section 32. Moreover section 32 has been dealt with in the judgments of other previous cases which act as a reference for arguments and decision in this case. Hence section 32 is deemed as pivotal in the case of Jones v Tower Boot Co. Ltd Task 2 1. Case note: Case Reference: Eileen Annette Waters v. Commissioner of Police of the Metropolis [1997] EWCA Civ 2012 (3rd July, 1997) Facts of the case: The case relates to two appeals filed by Eileen Annette Waters, started to work as a probationer in Metropolitan Police in May 1987 and was allegedly raped by a fellow constable. She is reportedly to have complained the matter to her various superiors, who didn't take care to provide any remedy to her. Her claim includes that The Commissioner, against whom the present appeal is made, is directly or vicariously liable for her ill-health caused by protracted ill-treatment and An action for both damages and an injunction against the Commissioner. Held: Both the appeals filed by Waters were dismissed with costs to the respondents and appeal to the House of Lords refused. 2.: Against the EAT the plaintiff preferred an appeal to the industrial tribunal complaining of victmisation to a serious sexual assault and also since she had made complains to the various police officers she had been removed from an active Police Team by the commissioner. The cause of action was sexual discrimination under section 4(1)(d) of the Sex Discrimination Act 1975. In the civil claim, the contention of the plaintiff was that the various officers and the Metropolitan Police, either singly or acting in combination were negligent and in breach of their duties or in their breach of her employment terms improperly dealt with her complaints in relation to the sexual assault on her and the subsequent matters. Hence she claimed that the various offices of the police force had maliciously criticise, harass, victimise, threaten, and assault and otherwise impress her and prevented her from carrying out her duties as an officer of the Crown. 3.: The plaintiff was subjected to serious sexual assault while serving the Metropolitan police force. When the plaintiff complained about this incident to the various officers they failed to take action in respect of her complaints. She was subjected to harassment, unfair treatment and victimization by the other police officers of all ranks up to the Deputy Assistant Commissioner Finally such harassment and unfair treatment made her succumb to serious ill-health, which was the direct result of these horrific experiences with the officers. The commissioner as the respondent to this appeal is directly or vicariously liable for this protracted ill-treatment. The appeal is preferred to claim both damages and an injunction. 3. (ii): The plaintiff claimed that she had been the victim of a serious sexual assault on her by a fellow policeman. She made a formal complaint of this serious act to the officers of the Metropolitan Police. By reason of the complaint the commissioner being the chief officer of the Police removed her from as a member of an active Police Team and this amounts to victimization. She made an application to an Industrial Tribunal under the grounds the commissioner and/or his servants or agents had committed an act which is contravention of the provisions of section 6(2)(b) of the SDA. The application to the Industrial Tribunal is also made on the ground that the plaintiff suffered victimization contrary to the provisions of section 4(1)(d) of SDA and got rejected. 4. : The provisions of the Police (Discipline) Regulations 1985 are relevant to consider. which include the 'misconduct towards a member of a police force'. The code specifies that an offence is deemed to have been committed where (a) the conduct of a member of a police force towards another such member is oppressive or abusive, or (b) a member of a police force assaults another such member". The redressal for such complaints can be sought through an investigation and inquiry procedure. In the case of an aggrieved police officer, a further complaint can be made to the Police Complaints Board. Judge Evans is of the view that since the remedy in the form of such complaints procedures were available to her the Chief Constable didn't have a duty of care under common law. 5. (i) : By a plain reading of the different sections it can be observed that victimization under section 4 arises only when an act of sex discrimination is alleged under section1. It may be noted that the relationship between a constable and the chief officer of the police is construed as that of the employer and employee under section 17 and on that basis section 6 covers the circumstances under which discrimination can be employed under employment situations. Since section 6 talks about the discrimination to a woman employee, this section is covered by section 1 which gives the scope of this Act, and aptly section 4 also covers the acts of discrimination during the course of employment as described under section6. 5. (ii) : Section 4 of the SDA states that any act that has the effect of victimizing when one causes discrimination as defined under section 1 of the Act against the other person to treat the other less favourably than how he will treat the others. Such act of discrimination should also have resulted by reason of the victimized having brought proceedings against the discriminator. This action should have been brought by the victimized under Sexual Discrimination Act or the Equal Pay Act 1970. 6. The wordings 'in the course of employment' as used in section 41 of SDA was implied to be importing into the ambit of the discriminations law, the common law definition of vicarious liability of an employer for the tortuous acts committed by his employees thus restricting the liability to wrongful acts authorised by the employer or a wrongful and unauthorised mode of doing some act authorised by the employer. This premise was based on the decision in the case of Irving v Post Office3 and the case of Jones v Tower Boot Co Ltd4 had given the courts and tribunals ample liberty to decide case of vicarious liability depending on the circumstances of individual cases without reference any connotation or restriction imported from the law of tortuous liability. Hence it is appropriate to apply the decision in the case of Jones v Tower Boot in this appeal. 7. (i): According to Mr. Allen, the tribunal has erred in making its judgment over the vicarious liability of the Commissioner without applying merits of the individual case of Ms. Waters. He further adds that the industrial tribunal has undoubtedly erred while considering the issue of the Commissioner's liability under s.41 by directing itself to resort to common law test of vicarious liability. On these grounds Mr. Allen amended his statement of claim in the appeal. 7.(ii): Waite L.J opined that at the time of the alleged incident of the sexual assault, the applicant was off duty and the alleged assailant was a visitor to the plaintiff's room "at a time and in circumstances which placed him and her in no different position from that which would have applied if they had been social acquaintances only, with no working connections at all". Under these circumstances any tribunal applying the principles laid down in Tower Boot case would find that the alleged assault was not committed in the course of employment. Hence it can be considered that Waite L.J is correct in holding that Ms. Water's assailant had acted outside the course of employment. 8. (i): In the case of Waters v Commissioner of Police Metropolis Mr. Allen the counsel for the plaintiff relies for the purpose of construction of section 4(1)(d) on the following: On the purposive construction of the legislation of the SDA in so far as it corresponds to the Equal Rights Directive. He further included the complaints under the Equal Pay Act within the regime of sec 4 of the SDA to enhance the range of protection available to the plaintiff. Mr. Allen's submission includes "S 4 (1) (d) has to be construed in such a way as to treat as protected acts any allegations which, objectively considered, are aimed at claiming (i.e. provide the basis for development of a claim for) protection under the equality legislation (Sex Discrimination or Equal Pay Act)." But according to Waite L.J apart from the public purpose there is the need for the person who has brought the charges of race or sexual discrimination has a responsibility to define such charge in a language sufficiently precise to enable the people against whom the charge was made to understand where they stand before the law. Hence he rejected the contention of Mr. Allen. 8. (ii): For the plaintiff to prove the allegation of discrimination, it is necessary that the allegation relied on "should have asserted facts capable of amounting in law to an act of discrimination by an employer within the terms of S 6 (2) (b)." However in this case the facts alleged by the complaint cannot be treated as an act of discrimination committed by the Commissioner because the acts were not of his and since the alleged assailant was not acting in the course of employment, the act cannot be treated as being done by the Commissioner for the purposes of Section 41 of the Act. Hence Waite LJ is correct in his decision to reject the contention of Mr. Allen with respect to the construction of s 4. Task 3 1 (i) : In Jones v Tower Boot case the statutory interpretation was attempted in defining the scope of the 'course of employment' under section 32 (1) of the Racial Relations Act 1976. Elaborate arguments and discussions have been made by the counsels and the judges in this respect and a decision arrived at In the other case of Waters v Commissioner of Police Metropolis the statutory interpretation revolved around the determination of 'victimisation' under section 4 (1) (d) of the Sexual Discrimination Act and act of discrimination in the course of employment under section 6 (2) (b) of the SDA. The theory of Statutory interpretations in both the cases have given insight in to the broad definition of the phrases 'course of employment' under section 32 (1) of the RRA as well as victimization and discrimination in the course of employment under section 4 (1) (d) and section 6 (2) (b) of the SDA. By an analysis of the representations and the arguments presented by the counsels and the detailed judgments delivered by the learned judges both the cases have changed the course of legal wisdom, especially in the case of Jones v Tower Boot the decision of the Court of Appeal has given an altogether different approach to the definition of the term 'course of employment' and had given the freedom to the courts and tribunals to have their independence in deciding the cases. 2. Theory of Precedence: 3. Neutral Citations: 4.: In the case of Jones v Tower Boot Co. Ltd the appeal was made in the Court of Appeal with the following case reference. Jones v Tower Boot Company Ltd [1997] IRLR 168 Court of Appeal The appeal by the plaintiff was allowed with costs. In the case of the Eileen Annette Waters v. Commissioner of Police of the Metropolis the appeal came up for hearing in the 'Supreme Court of Judicature , Court of Appeal (Civil Division) with the following reference: Eileen Annette Waters v Commissioner of Police for Metropolis [1997] EWCA Civ 2012 The Appeals were against the decision of the Employment Appeal Tribunal and an order of the lower court of Justice, on the judgment delivered by Mr. Justice Wright. The appeals were dismissed with the appellant to pay costs to the respondent and not to be enforced without the leave of the court. The court also refused the application for leave to appeal to the House of Lords. Read More