Case ref: 2.2/ May 2004
Summary of case
Ms X was bullied by her manager Mr Y. The bullying began in October 2001 and continued until June 2003. An internal investigation took place and the outcome was the employer agreed Ms X had been subjected to inappropriate and bullying behaviour.
The PCS rep had also submitted a personal injury claim (see Doc 4). Advice was sought as to which would result in the best outcome for Ms X, i.e. the PI claim or ET.
Key advice provided by Thompsons
"You sought advice about the possibility of pursuing an Employment Tribunal claim.
"As you know, the Tribunal can only consider complaints about bullying if bullying takes the form of unlawful discrimination on the grounds of sex, race or disability.
"Therefore, your member has a potential claim for sex discrimination.
"In order to succeed in a claim for sex discrimination, she would have to show that she was treated less favourably on the grounds of her sex.
"The Tribunal has to compare her circumstances with a real or hypothetical male comparator in circumstances which are the same or not materially different.
"Therefore, the employer would have to consider whether she would have been bullied in this way by Mr Y, if she were male.
"This is a point which may be needed to be explored further with your member. It seems to me that the Tribunal would not necessarily find that this was the case. For example, a number of the issues appear to have arisen from the fact that Mr Y always supported a female colleague, Ms Z, rather than your member. I note that some of the issues appear to stem a complaint of harassment made by a male employee against Ms Z."
After providing further general advice on the discretion Tribunals have to hear discrimination cases which "are out of time", the solicitor went on to comment:
"It appears that up until 3rd March 2003, there was a situation whereby your member risked coming into contact with Mr Y and she clearly found this very distressing. Although she was reassured on 26th January that a permanent move was being arranged, she clearly felt she had no option but to evoke the formal grievance procedure on 3rd March 2004. It appears that another position outside the Group was found for Mr Y as a consequence of her doing so.
"My view is that this is very much a borderline case but, there are reasonable prospects of successfully arguing, assuming the Tribunal accepts that the bullying of your member by Mr Y was on the grounds of her sex, that the failure to move Mr Y to a position where he would have no contact with your member, amounted to less favourable treatment on the grounds of her sex.
"The employer will almost certainly argue that this was not the case and it took such steps as were reasonably practicable to prevent your member from having any further contact with Mr Y. An employer can potentially defend a claim for sex discrimination if it can show that it did take such steps as were reasonably practicable to prevent discrimination from occurring.
"In the event that the Tribunal upheld your member's claim for sex discrimination, she could claim damages for injury to feelings and personal injury (assuming she can obtain medical report supporting such a claim.) In a recent case known as Vento v Chief Constable of West Yorkshire, the Court of Appeal has given guidance to Tribunals in assessing compensation for injury to feelings. In less serious cases the relevant band is £500 to £5000. In serious cases the relevant band is £5,000 to £15,000. In very serious cases, where there has been a long campaign of discriminatory harassment, the relevant band is £15,000 to £25,000.
"Assuming your member's case was successful, the Tribunal would be assessing compensation for the injury to feelings/personal injury suffered by your member, as a consequence of the failure to move Mr Y out of the group, rather than the bullying itself.
"Therefore, my view is that it is likely that any compensation would be in the lower band, particularly if there were no further acts of discrimination by your member from Mr Y after he was moved. The Tribunal could make a separate award for personal injury but would not necessarily do so."
"With regard to a potential PI claim for this case, the solicitor advised that "it is contended that the injury suffered arises from the act of discrimination on the grounds of sex, such a claim should be brought in the ET (Sherrif v Tings refers)."
"if it is not contended that the injury your member suffered was as a consequence of sex discrimination (i.e. she does not consider that the bullying by Mr Y was on the grounds of her sex), she may have a possible remedy in the form of a personal injury claim."
Legal Department comment
At the time of preparing this briefing we understand a PI claim has been submitted and is currently being looked at separately by the solicitors.
However, probably the key point to note from this case is the advice that Tribunals can only consider complaints of bullying if the bullying takes the form of unlawful discrimination on the grounds of sex, race or disability. Another key point made by the solicitor is that if the Tribunal finds bullying has taken place on the grounds of sex, the failure to move the perpetrator amounts to less favourable treatment.