Settlement Agreements & Harassment

(please be aware there is some strong language within this update relevant to the case background) 

An employee claiming harassment is likely to take the claim both against the alleged harasser and the employer who is vicariously liable for the actions of all its employees.  The employer may well prefer to settle the claim by means of a settlement agreement, but unless the accused is also named in the settlement agreement, so that the employee agrees to waive all potential claims against both the employer and the accused she may still take action against the latter.  This applies whether the claim is for sexual harassment, victimisation or any discriminatory treatment under the Equality Act 2010 or for whistle-blowing.

Sexual harassment

2015 – Police officer in a relationship with a more senior officer for 18 months.  When the affair ended he pestered her for 2 days.  That amounted to harassment on grounds of sex for the 2 days only, as the relationship was otherwise consensual.  The claimant asserted that she had been harassed for 18 months, and subjected to victimisation as a result of bringing the claim.  The Employment Tribunal (ET) found otherwise.

2013 – Receptionist for a caravan site, lived in an apartment on site.  After a party the MD came to her apartment and stood outside.  He was drunk.  She came to the door and asked him what he wanted.  He said he wanted to check that everyone arrived safely at their accommodation, and asked her what she was doing.  She told him she was cooking.  She closed the door and went back into the kitchen.  MD entered the apartment, and asked her twice for a kiss.  She thought he was dunk and ushered him out.  As he was leaving she gave him a kiss on the cheek.   The Respondent claimed he had been invited into her apartment for food and disputed any harassment.

The ET found that the claimant had been sexually harassed and awarded £3,500.00 for harassment and victimisation.  After making the complaint the Respondent investigated but decided there was no case to answer.  The claimant continued in post but was eventually made redundant.  It was accepted that there was a genuine redundancy situation, and the two receptionists had to be reduced to one only.

Continuing Act and Harassment on grounds of race

The Claimant in this case was born in the UK and considered herself Afro-Caribbean.  (This was an irrelevant fact that was wrongly taken into account by the Employment Tribunal).

The Claimant stated that she had received allegations of racial abuse from her employer over the telephone. When she told her employer, Mr Wood, she was told he knew about the complaint, and the complainant was a “f*****g immigrant”. That was in April 2009.

The following month the Claimants colleagues complained that “all f*****g illegal immigrants come here to claim off the government and sponge off the system”.

In June and July Mr Wood asked the Claimant two more question relating to attraction between people of different race and genital size.  Both the comments in June and July were considered acts of race and sex discrimination by the ET.

The Employment Tribunal found that because the claimant was not an immigrant she could not claim to have been discriminated by language in reference to immigrants.  That was the wrong test.  If she was offended by the comments made then she could claim to have been harassed on grounds of race, not necessarily of her race.  Her race was irrelevant.    It was agreed that immigrants are a racial group, and the EAT (Employment Appeal Tribunal) found that she was discriminated against on all 4 days.

Following the Employment Tribunal Judgement the claimant signed a compromise agreement drafted by counsel and agreed to accept £10,000.00.  The reason this compromise agreement could not prevent her appealing the decision to the Appeal Tribunal was because it was deficient, in that it did not comply with all the statutory requirements.

If you have any employment law queries and need some legal advice please contact Nick Richardson or Darryn Harris at rhw Solicitors by email  or call the Guildford office on 01483 302000