Harassment at work – where do you claim?

Published: 19 Mar 2018

Suzanne McKie QC is founder of Farore Law, a specialist firm advising on civil claims relating to gender discrimination, sexual harassment and sexual assault. 

What if you have been bullied several times by your manager because you have said you want to take extended maternity leave?

Or if you have been harassed because you work flexibly?

And what can you do if it is not a fellow employee who harasses you but a regular client or customer who uses your employer’s services?

Sexual harassment – which usually consists of unwanted conduct of a sexual nature – has been much in the news recently. However, harassment can be much wider – it is any unwanted conduct that creates a humiliating, intimidating, degrading, offensive or hostile environment for the person concerned, whether the perpetrator intends to create that impact or not.

To make out a claim for harassment in an Employment Tribunal, you need to be (or have been at the relevant time) an employee or a worker AND the unwanted conduct has to be because of a protected characteristic (such as gender, race, disability, age etc or because you do or did (at the relevant time) work part-time. Where it is related to pregnancy or the taking of parental leave a claim for harassment can often be linked to gender.

But there may be other kinds of harassment in the workplace that happen for different reasons, for example serious bullying by a manager whose general default style is to bully his team members, whoever they are. Claims like these are brought in the Civil Courts rather than the Employment Tribunals.

Harassment often has far reaching consequences for the victims, in particular affecting their mental health. The victims often end up having to take time off work because of sickness or stress. In both the civil courts and the Employment Tribunal a personal injury claim will only succeed if you have suffered a clinically recognised illness, such as Post Traumatic Stress Disorder or depression. But serious harassment can often lead to these conditions.

We set out here what you need to think about when you decide whether you will take your claim to the civil courts (the county court or the High Court, depending on how much damages you claim) or the Employment Tribunal.

The advantages of choosing the civil courts

• To bring a claim in the Employment Tribunal you must be (or have been at the relevant time) an employee or a worker. In the civil court, you don’t have to be an employee or a worker. So if the harassment is committed by a customer or supplier, for example, you could bring a claim in the ordinary civil courts against the perpetrator and possibly his or her employer.
• You do not need to rely on showing that the harassment was caused by one of the protected characteristics In the Employment Tribunal, the harassment must be because of your protected characteristic or part-time worker status and you need to show that the harassment would not have occurred but for your gender, race, etc.
• You have more time! In the Employment Tribunal, you generally only have 3 months from the act you want to complain about. In the civil courts, you have 3 years (in certain cases 6 years) to bring a claim in. In personal injury cases, the three years runs from the date of the injury or (if later) the date the claimant knew (or could be reasonably expected to know) that the injury might give rise to a legal claim.
• The limitation period can be extended – by way of a written agreement between the parties to do so – known as a Standstill Agreement.
• The responsible body, if an organisation, will often be insured for such a claim and that can give rise to more frequent settlements before trial or even before proceedings have been started. Employers dealing with Employment Tribunal claims are often not insured.
• The employer of the harasser will be liable for the actions of the harasser, as long as the harassment occurs in the course of the perpetrator’s employment. There is no defence to this, unlike in proceedings brought in the Employment Tribunals.
• If you win your claim (or a significant part of it) you are likely to get your legal costs (or a good part of them) paid by the losing party.
• Lawyers in personal injury civil cases are more willing to act under Conditional Fee Arrangements (being paid only if they succeed) unlike lawyers undertaking cases in the Employment Tribunal.
• The “Qualified One-Way Costs Shifting” regime applies – meaning that if you bring a claim in the civil courts you will (subject to limited exceptions) not have to pay the employer’s costs should you lose, but you will get your costs paid by the other side if you win. This is significant.

The disadvantages of the civil courts

• The pre-action process is a detailed regime that must be followed to avoid adverse costs implications for you. This process can be convoluted and delay matters.
• If a personal injury case is brought by you, then you must serve a medical report when you first serve the proceedings – unlike with claims brought in the Employment Tribunal.
• Some case law suggests that the harassment in civil cases needs to be of a more serious nature than in claims brought in the Employment Tribunal.
• A harassment claim under the Protection from Harassment Act cannot be brought unless there were two separate instances of harassment, with limited time between the acts. How long a period is allowed to elapse between the acts will depend on the Judge’s view, but a year is likely to be regarded as too long.

The advantages of choosing the Employment Tribunal

• Generally speaking the process is less complex than in the civil courts.
• If you lose the case you will in general not have to pay the other side’s costs – unless you behave unreasonably during the course of the tribunal proceedings.
• The Employment Tribunal judges and members are very used to dealing with harassment cases, the civil court judges less so.
• ACAS Early Conciliation – is available in Employment Tribunal Claims but not available in the civil courts.
• Medical reports – can be sought later in the process and one is not needed when you start legal proceedings.
• If the act of harassment is sufficiently bad then one instance of harassment is enough to bring a claim.
• There are conflicting judgments of the civil courts, some of which suggest the harassment must be targeted at the victim in order to give rise to a civil claim in the civil courts. This is not the case in Employment Tribunals.
• Your home contents insurance policy may cover you for certain claims in the Employment Tribunal – always worth checking.

The disadvantages of choosing the Employment Tribunal

• No costs if you win, unless the employer has behaved unreasonably during the course of the proceedings.
• The award for injury to feelings (the psychological impact of the harassment) is limited to sums allowed for under case law.

Conclusion

If you are some way past the end of the 3 month limitation period for claims for harassment/discrimination in the Employment Tribunal, then personal injury/use of the Protection from Harassment Act may be your only option. Also if you do not fall within the categories of worker, or employee you will have no choice but to use the ordinary civil courts.

However, even in cases involving workers there may be advantages to making a personal injury claim in the civil courts. There are many important differences between the two regimes and a good lawyer should always advise you of both.

If you would like to speak to someone about your legal rights please call the Working Families helpline on 0300 012 0312 or email the advice team on advice@workingfamilies.org.uk.

You can find information about Employment rights including Civil Courts and Employment Tribunals in our Advice section.