Employment Law E-Bulletin – Issue 89

  • Bullying and Respect at Work Bill introduced to Parliament
  • Employment Tribunal rules that singing a song amounted to sexual harassment – Mr S Nunns v SBH Windermere Ltd and Mr A Wilson (unreported case)
  • Employment tribunal awards over £100,000 in gender-critical belief discrimination claim – Forstater v CGD Europe [2023] 6 WLUK 478

Bullying and Respect at Work Bill introduced to Parliament

On 11 July 2023, Labour’s Rachael Maskell presented her Bullying and Respect at Work Bill to Parliament.

Employees are currently limited in how they can claim against workplace bullying. Bullying itself is not against the law, but harassment is. An employee can either claim for harassment under the Equality Act 2010, or follow workplace internal procedures, such as raising a grievance.

Since harassment requires unwanted conduct to be related to a protected characteristic, a harassment claim may prove difficult to bring, and an employee can be left with internal procedures as the only remedy. The Bill seeks to address this issue.

If the Bill becomes law, the following changes would be implemented:

  1. the introduction of a statutory definition of workplace bullying;
  2. the introduction of a Respect at Work Code, setting minimum standards for positive and respectful work environments;
  3. employment tribunals would be able to hear workplace bullying claims, and;
  4. the Equality and Human Rights Commission would be able to investigate workplaces where there is evidence of bullying, and take appropriate enforcement action.

Under the Bill, employers will likely face sanctions if they do not deal with workplace bullying appropriately, with the Equality and Human Rights Commission given powers to investigate employers in breach of the new legislation. The Bill offers further protection for employees, with new avenues to pursue complaints of workplace bullying, whilst introducing potentially greater liability for employers who don’t take steps to deal with it.

The next stage for the Bill, the Second Reading in the House of Commons, is scheduled to take place on 24 November 2023.

Points to note:

By defining workplace bullying, establishing obligations, protecting employees’ rights and outlining the consequences, the proposed legislation offers greater protection for employees. Employers should ensure that they have clear anti-bullying policies in place and that these are implemented properly with staff training and steps taken to raise awareness.

Further updates will be provided when we have more information.

Employment Tribunal rules that singing a song amounted to sexual harassment – Mr S Nunns v SBH Windermere Ltd and Mr A Wilson (unreported case)

An Employment Tribunal recently ruled that singing “The Ballad of Barry and Freda”, in a certain manner, amounted to sexual harassment.

Mr Nunns (the “Claimant”) was employed by SBH Windermere Limited (the “First Respondent”) as the Head Chef at Windermere Manor Hotel. The Claimant alleged that he had been sexually harassed by Mr Wilson (the “Second Respondent”), the General Manager of the hotel, and that unauthorised deductions had been made from his wages. He claimed that the Second Respondent had sung “The Ballad of Barry & Freda” in front of him, placing particular emphasis on the words “let’s do it” which are repeated throughout the song, whilst making eye contact and disconcerting gestures towards him.

The Employment Tribunal held that the manner in which the Second Respondent sang the song amounted to unwanted conduct of a sexual nature, and that the Claimant had therefore been harassed by the First Respondent and the Second Respondent. The Claimant’s claim for unauthorised deductions from wages did not succeed.

Points to note:

This case is a good reminder of what can constitute harassment under the Equality Act 2010. The Employment Tribunal found that it was clear that the way in which the song was sung to the Claimant had the effect of violating his dignity, creating a degrading, humiliating and offensive environment for him. The Employment Tribunal will consider all relevant circumstances surrounding a sexual harassment allegation, when making a decision.

Employers need to carefully consider employee behaviour in the workplace, drawing attention to the manner in which behaviour is presented. Clear training should be given as to what can amount to harassment, so that this can be prevented and if taking place, identified and dealt with effectively. This is important, as an employer’s failure to identify and deal with instances of sexual harassment may lead to a successful claim being brought against them.       

Employment tribunal awards over £100,000 in gender-critical belief discrimination claim – Forstater v CGD Europe [2023] 6 WLUK 478

An Employment Tribunal has awarded over £100,000 in compensation to  Maya Forstater (the “Claimant”), following the well-publicised judgment that she had been discriminated against on the basis of her views on gender which constituted a philosophical belief for the purposes of the Equality Act 2010 (“EqA 2010”).

The Claimant held a contract as a visiting fellow and had entered into consultancy agreements with CGD Europe (the “Respondent”). In 2018, she expressed gender critical beliefs on social media, and, following an investigation, her visiting fellowship contract was not renewed.

In 2019, the Claimant brought a claim for belief and sex discrimination, claiming that her gender-critical beliefs constituted a protected “philosophical belief” under the EqA 2010. The claim failed at the preliminary stage when the Claimant’s gender critical belief was found not to amount to a philosophical belief that qualified for protection under the EqA 2010. The author, J.K Rowling, expressed support for the Claimant which raised the case to international attention.

In 2021, the Employment Appeal Tribunal (the “EAT”) ruled that the Employment Tribunal had applied the law erroneously, and held that the Claimant’s belief was a protected philosophical belief under the EqA 2010. The case was remitted to a freshly constituted tribunal.

In 2022, a fresh Employment Tribunal found that the Claimant had suffered direct discrimination and victimisation on the grounds of her philosophical belief. The sums awarded at the subsequent remedy hearing were £27,000 for injury to feelings (including aggravated damages), £14,000 for loss of earnings, £50,000 for loss of chance/loss of earning capacity, and £14,778.47 in interest.

The compensation was considerable for a number of reasons. One reason being that the Claimant’s injury to feelings was found to fall in the top range of the middle Vento band, as the discriminatory acts were held to be significant, took place over months and “affected the Claimant’s status within the Respondents’ organisation and in the eyes of the wider professional world”. Another reason being that the tribunal decided the sum for loss of chance/loss of earning capacity should reflect all of the possibilities one way or the other, as the discrimination limited the opportunities available to the Claimant, precipitating a career change.

Points to note:

This case is of course most notable for the previous judgments and is going to be an important one when considering the scope of protection under the EqA 2010 when it comes to philosophical beliefs, particularly beliefs around gender.

With compensation for unlawful discrimination being unlimited, employers will need to be careful when making decisions in consequence of an employee’s views, as any employee who meets the criteria for possessing a philosophical belief will be eligible to make a potentially costly claim.

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