April Case Round Up
In this month’s E-News we consider whether harassment by hearsay amounts to discriminatory conduct, whether a claimant’s inability to pay should be considered by an Employment Tribunal when considering whether to award costs, and finally we consider the meaning of “public interest” within the Whistle blowing legislation.
Can hearsay evidence amount to harassment?
This was considered in the case of Habinteg Housing Association Limited v Holleron UKEAT/0274/14.
Harassment is defined under Section 26 (1) of the Equality Act 2010 as unwanted conduct relating to a relevant protected characteristic that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
In this case the Claimant, Mrs Holleron worked as a community assistant for Habinteg Housing Association. She was suspended, when a complaint was made about her dealings with a vulnerable tenant.
An investigation was undertaken which entailed an 11 hour meeting with the Claimant and an interview with the vulnerable tenant. The vulnerable tenant advised the Claimant a few weeks later of her meeting with the investigator. The Claimant alleged that the investigator had advised the tenant that the claimant “bats for the other side” and was trying to make out that she was physically or sexually taking advantage of the tenant. The Claimant complained about the investigator but no action was taken.
The Claimant subsequently brought a number of claims which were dismissed with the exception of the claim for harassment on the basis of the hearsay evidence which she alleged to sexual orientation.
Despite the fact that the Claim was submitted to the Employment Tribunal 12 days out of time; the Claim was accepted and in addition the Employment Tribunal accepted that the Claimant had been harassed on the grounds of her sexual orientation.
The employer appealed to the Employment Appeal Tribunal (EAT). The EAT held that the claim was out of time and as such the claim was dismissed.
This is the first decision concerning harassment by hearsay namely where the Claimant did not hear the harassing words allegedly spoken by harasser but only reported to her by a third party. The EAT confirmed that hearsay evidence could constitute harassment however there would need to be evidence provided and assessed by the Tribunal.
Does it make a difference in making a costs award if the Claimant does not have the ability to pay?
This was considered in the case of Chadman v Doncaster & Bassetlaw Hospital NHS Foundation Trust and Another UKEAT/0259/14. In this case the EAT upheld an Employment Tribunal’s decision to award costs despite the claimant’s inability to pay.
Unlike civil courts, an Employment Tribunal may make a costs award where in the Tribunal’s opinion a party or a party’s representative has acted vexatiously, abusively disruptively or otherwise unreasonably in either the bringing of the proceedings or the way the proceedings had been conducted. The Employment Tribunal can make a costs award of up to £20,000, or alternatively make an award for the whole or specified part of the receiving party’s costs to be determined on detailed assessment. When making a costs award the Employment Tribunal may take into account the paying party’s means to pay but is not obliged to do so.
The Claimant, Mrs Chadman bought a number of race discrimination claims against the Trust all of which were dismissed by the Employment Tribunal. Indeed the Employment Tribunal held that the Claimant had fabricated the allegations of discrimination, and as such held that this was unreasonable conduct which gave the Tribunal discretion to make a costs order against the Claimant.
The Tribunal made a costs award of £10,000 this was despite the fact that the evidence before the Tribunal was that the Claimant had limited means to pay due to debts of £600.
The Claimant appealed. The EAT held that the Tribunal has discretion to consider the Claimant’s means and also the fact that in light of her age (39 years) her financial situation was likely to improve and accordingly the EAT dismissed the appeal.
What does public interest mean?
Protection for whistleblowers is set out in the Public Interest Disclosure Act 1998. An amendment was made in June 2013, which meant that in order to qualify as a protected disclosure the disclosure had to be made, in the reasonable belief of the worker, in the public interest. The requirement for bad faith does not have to be considered until the remedy stage of the proceedings.
But what does “in the public interest mean”. This was considered by the EAT in the case of Chesterton Global Limited and another v Nurmohamed UKEAT/0335/14.
The Claimant was employed as a senior manager at Chesterton. Following changes to the company’s commission structure the Claimant complained about the inaccuracies of the company accounts, which he believed had an impact on his commission. He asserted that the company was deliberately providing false information to the accountant, which resulted in lower commission payments to a number of employees including himself. The Claimant was dismissed and brought claims against Chestertons.
The Employment Tribunal held that the Claimant had been automatically unfairly dismissed, and that the company had subjected him to detriments on the grounds that he had made protected disclosures. The Employment Tribunal held that at the time the Claimant made the disclosures he believed that the detriment was also to his colleagues of which there were in the region of 100 employees affected; and that this was a sufficient group for it to amount to being in the public interest.
The company appealed to the Employment Appeal Tribunal. The Employment Appeal Tribunal dismissed the appeal and held that the Employment Tribunal had adopted the correct approach. The correct test is not whether the disclosure was in the public interest but whether the Claimant believed it was.
This is the first decision which considers the meaning of public interest and provides useful guidance for employers, when considering whistleblowing claims brought by workers.
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Should you have any questions in relation to this article please contact Sejal Raja.
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This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.