A private member’s bill is currently working its way through our parliamentary system. Introduced by the Liberal Democrats the bill has received general cross-party support, including from the UK government.
Whilst, certainly at first glance, the implications of the bill (once law) will largely be within the jurisdiction of the Employment Tribunal, it is perhaps worth briefly considering how the bill might change the way claims are pursued within the County Court.
The Employment Tribunal can, and will, routinely deal with claims for psychiatric injury, injury to feelings and other losses arising from alleged breaches of the Equality Act, alongside other breaches of the employment contract. It is, however, not unusual for a claimant to seek to carve out any personal injury element of the claim from other breaches of the employment contract. Many settlement agreements will settle all strands of an employment claim, save for the personal injury aspect, with the injury claim following subsequently.
The biggest bar to employee Equality Act claims within the County Court is almost certainly the six-month limitation period, especially where dealing with a complex and multifactorial claim for psychiatric injury. The initial focus on the employment aspects of the claim, a delay in obtaining medical records or evidence, and the general costs of psychiatric injury claims, might all play a part in dissuading the claimant practitioner from issuing proceedings precipitously in the County Court and proceeding far more cautiously after thorough investigation.
This new bill may, however, change the calculations of the claimant practitioner.
Claims for sexual harassment in the County Court are generally brought in common law and under the Protection from Harassment Act 1997 (PHA 1997). The PHA 1997 requires a course of conduct (i.e. more than one instance) in order to successfully pursue a claim. There has been significant case law on what might constitute harassment under the PHA. The proposed bill defines sexual harassment simply as ‘unwanted conduct of a sexual nature’, and this simple definition appears wider and with a lower threshold than harassment claims under the PHA (see Conn v Sunderland City Council  EWCA Civ 1492).
Vicarious liability, whether a claim is brought under the PHA 1997 or in common law, will also need to be established and has been the subject of many recent cases.
The proposed bill introduces two new key aspects:
The bill allows the expansion of the grounds of a claim, removing defences that might ordinarily be brought by a defendant.
An employer will need to evidence the steps it took to prevent sexual harassment in the workplace – a positive rather than a reactive obligation. A lack of training or general awareness of what might constitute harassment within the workforce might be seen as a breach of that positive duty and assist an employee in bringing a successful claim.
Both the PHA and the Equality Act allow a claimant to recover for injury to feelings. The tariffs under the Vento guidelines for injury to feelings can often be commensurate with damages awarded for psychiatric injury, depending upon the severity and duration of the harassing conduct. The County Court has readily adopted the tariffs used within the Employment Tribunal when awarding damages for breaches of the Equality Act and when making awards for injury to feelings under the PHA.
The bill also proposes an uplift in compensation, of up to 25%, where an employer has failed in its positive duty to prevent sexual harassment. What is not clear is whether a County Court will, if dealing with a sexual harassment claim under the PHA, be persuaded to adopt a similar compensatory tariff or whether there might be a difference in awards received by claimants, depending upon which statute is pleaded and relied upon.
What does seem clear, however, for any lawyer instructed on a sexual harassment at work claim, is that a full consideration of all of the advantages and disadvantages of the early issue of proceedings is warranted, should the bill become law as expected.
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