Claims of harassment, be they current or historical, are everywhere at the moment. Regardless of your view on the legitimacy of some of these, what is undeniable is that employers cannot continue to make allowances for the types of conduct that are being reported without risking significant legal exposure. Whether it’s a male director being too touchy-feely with his female reports or a female manager making risqué comments to male trainees, you could be dealing with valid discrimination complaints if that conduct can reasonably be perceived to have had the effect of violating the subject’s dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
That leads us to the sixty-four-thousand-dollar question: Where a complaint of bullying and/or harassment is made, how does an employer uphold it without risking further exposure to a related Employment Tribunal claim?
As is invariably the case in respect of grievances that include complaints of bullying, harassment and discrimination, the employer is caught between the devil and the deep blue sea. Should it try desperately not to make any admissions for fear of providing further evidence in support of the employee’s allegations and thereby facilitating a future claim, or should it not even try to defend the indefensible, make concessions and take remedial action?
First and foremost, it’s important to realise that where an employer commits a repudiatory breach of an employee’s contract, it can’t repair that breach by putting its hands up, saying sorry and taking steps to put things right. But that’s not to say that doing so will not serve to defeat a related claim in some circumstances. The determining factor will be whether the acts complained of amounted to a fundamental breach of contract. As the principle of raising a grievance is to resolve a workplace concern before it escalates to the point of being irreparable, if it’s resolved then it will not constitute the repudiatory breach necessary for a successful constructive dismissal claim.
The key to deciding the approach to adopt to grievances such as these is therefore assessing the seriousness of the conduct complained of. That’s not to say that where an employer is of the view that the conduct does amount to a fundamental breach, the employee will have it all their own way if they submit a claim regardless of the employer falling on its sword to that effect. Tribunals rarely criticise employers for not trying to defend the indefensible and this will likely be reflected in the size of any eventual award. Furthermore, it may serve to appease the employee to the point that the likelihood of them claiming in the first place is reduced.
At Employee Management Ltd, our HR support consultants provide commercially minded employment law advice and bespoke HR services that can actively reduce your organisation’s exposure to litigation. We also offer a comprehensive employment tribunal representation service through which we can handle any claims you do receive. If you’re an employer faced with a complaint from an employee that you fear could eventually lead to litigation, please contact us for a confidential, no-obligation discussion.