Harassment at Workplace on the Ground of Sexual Orientation as a Problem of Lionel - Case Study Example

ADVISE FOR LIONEL Facts of the matter Lionel’s problems in the firm are three-fold. The paper will address the problems individually. All of Lionel’s problems have legal solutions, and proper advise will enable Lionel to carry on with his job in the company. This can be done by getting legal aid so that Lionel does not suffer from the said problems. Lionel has been working in the firm for eighteen months. He has entitlement for all benefits of a permanent employee. However, links on the employment page of www.direct.gov.uk,1 suggests the following steps with regard to resolving disputes at work. (1) Try to sort it out personally first. (2) Make a formal grievance complaint. (3) Get third party help to sort out problems at work. (4) Agree to a solution with your employer (5) Resort to Employment Tribunal and Civil Courts Apart from this, it is also suggested that the employee should approach the ACAS i. e. the Advisory Conciliation and Arbitration Service. The site also suggests that the employee should approach Citizen Advice Bureau a chain of voluntary service organization working across the United Kingdom. Problem of Seating Lionel’s first problem is that he has pain in his lower back. He attributes this to the seating provided to him by his employer. This can be addressed simply by informing his employer about the problem with his seating. This problem is that the chair provided to Lionel unsuitable, in that it is not adjustable. It is the duty of every employer to provide adequate amenities to his employees. The occupational hazard of sitting in a chair for long hours together is that back pain may result. Lionel is in charge of administration over and above his duties which include preparing property details. His job also entails his working at the computer. As such his duty entails sitting for long durations in his chair. Legislation regarding seating arrangements The Health and Safety at Work etc Act, 1974, provides that “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees”2. Apart from this, the law mandates that the employee, who is the occupier of the premises according to the relevant law, has to provide adequate seating for his employees. Seats for sedentary work (1) … where any work done in any premises to which this Act applies is of such a kind that it (or a substantial part of it) can, or must, be done sitting, there shall be provided for each person employed to do it there a seat of a design, construction and dimensions suitable for him and it, together with a foot-rest on which he can readily and comfortably support his feet if he cannot do so without one.3 Lionel can under this law, file a complaint before the local magistrate as the firm’s lapse to provide adequate seating arrangement i. e. an adjustable chair is an offence. In the event of a contravention, in relation to any premises to which this Act applies, of any such provisions of this Act as are mentioned in subsection (2) of this section or of regulations made under any such provisions, then— (a) except in a case falling within either of the two following paragraphs, the occupier of the premises shall be guilty of an offence;4 as also for negligence in torts at common law. Harassment at workplace on the ground of sexual orientation Lionel’s second problem is that he is being harassed at the workplace by his male colleagues who snigger at him at the workplace. They laugh at him for the way he dresses behind his back. Lionel feels that his male colleagues do this to him because he is an openly gay male. The acts amount to discrimination on the grounds of sexual orientation. He also feels that they are laughing at him because he likes to wear brightly coloured ties. Again on the morning of a Tuesday, Lionel arrived at his work earlier than usual. He heard his male colleagues referring to him as “a big girl’s blouse”. This remark, though not intended to be heard by him upset Lionel who has become sensitive on the issue because the apparent harassment caused to him by his male colleagues. The words “big fairy” are evident of the fact that the Line Manager also discriminates against him. They are used colloquially to refer to a gay male, and are offensive in themselves. Thus not only his colleagues but even his superior has discriminated indirectly against Lionel. Law provides remedies for various kinds of discrimination including race, gender, ethnicity, sexuality, disability, age etc. Recently, there has been regulation for discrimination on account of sexual orientation. Harassment in general Harassment in general, and as suffered by Lionel is prohibited by law which provides that A person must not pursue a course of conduct— (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other5 Harassment on grounds of sexual orientation The colleagues of Lionel would be liable for harassing him as per the following provision, 5. — (1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on grounds of sexual orientation, A engages in unwanted conduct which has the purpose or effect of— (a) violating B’s dignity; or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.6 Further, according to the following, the employer i.e. the firm Great Movers will be liable for harassing Lionel. 6 --- (3) It is unlawful for an employer, in relation to employment by him at an establishment in Great Britain, to subject to harassment a person whom he employs or who has applied to him for employment.7 Thus the acts of the firm in tolerating, aiding and abetting the harassment of Lionel done by his colleagues is illegal, and Lionel can very well seek redressal in the Employment Tribunal. Liability of employers and principals 22. — (1) Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval. The law also provides for the liability for aiding and abetting such harassment by individuals. 23. — (1) A person who knowingly aids another person to do an act made unlawful by these Regulations shall be treated for the purpose of these Regulations as himself doing an unlawful act of the like description. The Line Manager’s act of advising Lionel to get on with work falls squarely under this regulation. By way of enforcement of his claim, Lionel can approach either the county sheriff or magistrate or can go directly to the Employment Tribunal. In addition to monetary compensation, the Employment Tribunal may make “a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination or harassment to which the complaint relates.”8 Breach of contract Constructive or unfair dismissal itself constitutes a breach of the implied term of mutual trust and confidence. Bullying Concerned about this and troubled by the harassment, Lionel has tried to approach his Line Manager who did not respond positively. In fact she has tried to make light of his problem by remarking that Lionel should not let “little things wear you down”. She has also advised him to “Just try and toughen up and be a man.” Dissatisfied with this response, Lionel has sent a formal written complaint to her expressing his concerns regarding the issue. He went to his Line Manager for the second time complaining about the attitude of his colleagues. The line Manager, instead of sympathising with his concerns, lost her patience with him. She bawled at him across the office floor, “Oh for God’s sake, don’t you think I have other problems to sort out – just get out there and do your job and stop behaving like a big fairy.” Lionel has been a victim not only of discrimination and harassment at his workplace but also of bullying by his superior. This gives rise for cause of action against the colleagues and Line Manager individually but also against the firm, as the firm. This is so because the firm is under a duty of care of its employees. As such the law holds the firm to be vicariously liable for Lionel’s being safe from harassment, discrimination and bullying by his colleagues and his superiors who are also employees of the firm. Bullying at work is intimidation of a subordinate by his superior. This is more offending when done in front of colleagues. Lionel’s superior that is the Line Manager has bawled across the office at him, which means that his colleagues are present and have heard the manager’s words, which are discriminatory as regards his sexual orientation. Only employees with a period of service of more than a year can claim relief under relevant provision. Lionel has been in employment for more than that, hence he can resort to the remedies provided. All of this has led Lionel to consider quitting his job. This is called constructive dismissal. The law provides for this, and the employee would deemed to have been dismissed by his employer if “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”9 It means that the conditions at workplace for an employee have worsened to such limits that the employee can not continue to work there. The reasons of Lionel’s being forced to think of quitting are serious. He is forced to think so because of harassment by his colleagues and bullying by his superior. Another reason is that the continuation of his work in his office with the defective chair may put his health in danger because of damage to his lower back. In the circumstances, Lionel can approach the Employment Tribunal and seek redressal of his grievances. Case law related to the subject The leading case relevant to the matter is Waters v Commissioner of Metropolitan Police in which it was held that If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee. It seems to me that he may also be in breach of that duty if he can foresee that such acts may happen and if they do, that physical or mental harm may be caused to an individual.10 Courts have ruled in so many cases regarding harassment as also bullying at workplace.11 Read More