Hostile, degrading, humiliating

Thanks to @tchickphoto for making this photo available freely on @unsplash 🎁

Scanning through the papers today for news worthy stories, I found myself looking across the sea (the Irish Sea to be precise) and it was there that I stumbled upon an interesting article in The Irish Times.

Regular readers of this Blog will be aware that I have a particular interest in the areas of discrimination and employment law and this story ticked both boxes.

A female supermarket delicatessen worker was repeatedly subjected to sexual harassment on an almost daily basis by one of her male co-workers. The dreadful treatment appears to have started less than a month after the woman commenced her employment (May 2018). Her manager (a man) was fully aware of the situation, but did nothing to put an end to her ordeal. In fact, he witnessed one of the brazen attempts by her tormentor and made a joke of it. This joke involved comments about people from Limerick. I have to say as someone who has Limerick ancestry, I felt pretty insulted when reading the manager’s gratuitous comment.

A link to the story in The Irish Times can be found below:

https://www.irishtimes.com/news/ireland/irish-news/deli-worker-awarded-20-000-for-almost-daily-sexual-harassment-1.4128207

The woman complained about the situation, but she was not informed about the progress of this by her employer. Eventually, the woman felt that she had little choice but to resign from her employment. This could be viewed as the last straw – her employer’s conduct having led to a complete breakdown in their relationship. It might be said that the implied duty of trust and confidence on the part of the employer had been completely shattered.

In the UK, we would, of course, recognise this situation as one of constructive (unfair) dismissal in terms of the Employment Rights Act 1996 and the Equality Act 2010 (she was being subjected to discrimination/unlawful less favourable treatment on the grounds of her sex).

When the woman’s formal complaint was submitted, her employer did move her male colleague to a different location within the supermarket (the storeroom), but he went absent on sick leave shortly afterwards.

The whole experience was extremely distressing for the woman who has now been awarded €20,000 in compensation.

Again, readers in the UK will make the obvious comparison with our Vento scale (or bands) for compensation for victims of discrimination. The sum awarded to this woman would fall into the middle band in the UK (£8,800 to £26,300).

A link to an article about the current UK Vento scale or bands can be found below:

https://www.crosslandsolicitors.com/site/hr-hub/injury-to-feelings-awards-updated-Vento-guidelines-April-2018

Anyone with a background in discrimination law who reads the article from The Irish Times about this story will immediately recognise the terminology used. The women alleged that her co-worker’s behaviour “was a violation of dignity in that it created an intimidating, hostile, degrading, humiliating and offensive environment for her.”

Such a statement reflects the language of the European Commission’s Code of Practice on Measures to combat sexual harassment. This Code was first formulated as far back as 1991 and has now been largely implemented into the legal systems of EU member states. The Republic of Ireland is, of course for the time being, one of our fellow EU member states and Irish anti-discrimination practitioners will be readily familiar with the terminology. For many years, Employment Tribunals and UK courts routinely used the Commission’s Code of Practice when dealing with cases which involve allegations of sexual harassment.

Current UK law on harassment in the workplace is contained primarily in the Equality Act 2010. More seriously, acts of harassment can also be a criminal offence.

A link to a guidance published by the UK Equality and Human Rights Commission concerning sexual harassment in the workplace can be found below:

https://www.equalityhumanrights.com/sites/default/files/sexual-harassment-and-the-law-guidance-for-employers.docx

The Conciliator appointed by Ireland’s Workplace Relations Commission, an independent statutory body created by Oireachtas – both Houses of the Irish Parliament, concluded that the woman’s employer had “failed to put appropriate measures in place to stop this harassment and sexual harassment from occurring or to reverse its effects”.

The Conciliator also noted that “the supermarket failed to conclude its investigation and make a decision is the most egregious flaw in the process.” The employer tried to justify this failure by saying that, as a matter of natural justice, it could not conclude the investigation because the male colleague had since left Ireland to return to his country of origin. The Conciliator stayed that the employer made this decision “at the expense of the complainant and closure for her of this appalling experience”.

Employers, please take note: failing to follow basic grievance procedures contained in the employment contract can have serious and expensive consequences. Such a failure on your part can contribute to the breakdown of the relationship with the employee and may very well open the door to claims for constructive dismissal against you.

Related Blog Articles

https://seancrossansscotslaw.com/2019/02/14/hurt-feelings/

https://seancrossansscotslaw.com/2019/02/22/sticks-and-stones-may-break-my-bones-but-names-will-never-hurt-me/

Copyright Seán J Crossan, 1 January 2020

Ungagged?

Photo by Igor Rand on Unsplash

Should employers be permitted to insist on the inclusion of a “gagging clause” or non disclosure agreement (NDA) when they settle a claim outside court or tribunal for alleged harassment or discrimination?

Maria Miller MP, Chair of the Women and Equalities Committee of the House of Commons certainly doesn’t think so. Ms Miller is firmly of the view that the UK Parliament should introduce legislation, at the earliest opportunity, to outlaw the widespread use of “gagging clauses” or non-disclosure agreements.

A link to the Committee’s Report can be found below:

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/inquiries/parliament-2017/nda-inquiry-17-19/

In April 2019, the BBC revealed that Ulster University in Northern Ireland had paid out approximately £226,000 as part of 6 settlement agreements involving former members of staff who had brought claims for discrimination and harassment while employed at the institution. These settlement agreements contained confidentiality clauses, “gagging” clauses or NDAs (the reader is free to decide which term is preferred). The BBC also discovered that 96 UK universities had used NDAs representing £87 million in value. A truly staggering figure and one can only wonder what would be the figure for settlements in privately run businesses.

Confidentiality clauses are often a staple feature of cases brought to the Employment Tribunal. The parties may well decide to settle the claim privately before proceedings are concluded. It tends to be the case that the employer party is keen to include a confidentiality clause in the settlement agreement as a condition of making a payment to the ex-employee. It should be said of course that in these types of settlement agreements, the employer is making the payment without admission of liability and the reason for choosing this method to resolve the claim can often be purely about simple economics i.e. you weigh how much it would cost you in legal expenses and disruption to your organisation for representation at a 5 day Tribunal hearing as opposed to settling the claim quickly.

NDAs started life as a way of ensuring that former employees who had previously worked for organisations were not tempted to disclose trade secrets (or other information) to their new employers which they had acquired in their old jobs.

Admittedly, the common law imposes a number of duties on employees such as:

  • to provide loyal service;
  • to act in good faith;
  • to ensure confidential information remains secure

Now, it would be something of a stretch for employers to argue that the above duties permitted them to ‘gag’ employees who had been the victims of discrimination and harassment in the work-place – hence the rise of the NDA. This is where employers get the victims to enter into a legally binding settlement agreement where, in return for a compensation payment (and sometimes an agreed reference), the victim promises not to discuss their situation with anyone other than his or her legal advisers.

Since the rise of the #MeToo and Time’s Up movements, there has been much more interest in these types of settlement agreements as more and more allegations about sexual harassment in the work-place have come to light. It has been alleged that individuals such as the disgraced American film producer, Harvey Weinstein and the British retailer, Sir Philip Green made use of NDAs to prevent people discussing how they were treated when they worked for these individuals. These agreements are seen as a sinister attempt to buy the victim’s silence by rich and powerful men who have seemingly bottomless pockets and inexhaustible legal resources.

Maria Miller and her colleagues on the Women and Equalities Committee are now saying time’s up for these types of arrangements.

Links to the stories about the work of the Women and Equalities Committee and the use of NDAs at Ulster University can be found below:

NDAs: MPs call for ban on ‘gagging clauses’ over ‘cover-up’ fears

https://www.bbc.co.uk/news/uk-northern-ireland-47981244

Postscript

In July 2019, the UK Government announced that it plans to introduce a Bill to Parliament in order to ban the widespread use (and abuse) of non disclosure agreements in employment contracts.

A link to this story on the BBC news site can be found below:

NDAs: New laws to crack down on ‘gagging’ clauses

A ban will be placed on NDAs that stop people speaking to police, doctors or lawyers, ministers say.
The scale of the problem of alleged harassment in the work-place and how employers deal with this can be seen in the article below which appeared in The Independent:

Copyright Seán J Crossan , 12 June and 21 July 2019