Friday, October 12, 2012

Jimmy Savile - An Employment Law Perspective

In recent days there has been a deluge of allegations against the late Sir Jimmy Savile to the extent that the Police have stated as a fact that he was a predatory sex offender.

What sort of employment law implications could a case of this type raise?

Behaviour of the type alleged would amount to unwanted conduct related to the protected characteristic of sex and would have the purpose or effect of violating the dignity of the victim and/or creating an intimidating, hostile, degrading, humiliating of offensive environment for him or her.

As such it would potentially amount to unlawful sexual harassment for the purposes of the Equality Act 2010. If the victim was a fellow employee of the perpetrator (or fell within the other categories of worker who are protected) he or she could bring a claim for damages in the Employment Tribunal. A member of the public (e.g. a guest on a TV programme) could not bring a Tribunal claim but might be able to bring a civil claim for, for example, assault and/or press criminal charges.

An employer is liable for the acts of its staff done "in the course of their employment." This is given a wide meaning in this context so the fact that it is, of course, not part of the employee's job to abuse people would not in itself mean that the employer escaped liability.

The employer has a statutory defence if it can show that it took all reasonable steps to prevent the discrimination but this is a high hurdle to clear and if the tendencies of the individual were an open secret within the organisation in question then the employer would be likely to have very little chance of success with this defence.

The individual can also be sued in person in the Employment Tribunal on the basis that their actions amount to knowingly aiding the employer to commit an act of discrimination.

If the abuser was not a fellow employee of the victim but a third party (e.g. a guest on a TV show or a volunteer at a hospital) then the employer can currently be liable (although the Government is proposing to abolish this provision) if it takes such steps as are reasonably practicable to prevent the third party from harassing the employee. This liability only arises when the harassment has taken place on at least two previous occasions, the employer is aware that it has taken place and then fails to take reasonable steps to prevent it happening again.

There is also specific provision in the Equality Act for a claim for damages by an employee who claims to have been less favourably treated because they have rejected or submitted to inappropriate behaviour related to sex.

If the allegations were as old as the ones in the Savile case then the Claimant would be likely to have a serious time limit problem. Discrimination claims usually have to be brought within 3 months of the act complained about or the end of a continuing act of discrimination (which would apply where there was an ongoing campaign of harassment.)  The Employment Tribunal does have power to extend time where it is just and equitable to so but in circumstances where the alleged perpetrator was dead this would strongly suggest the employer is likely to be severely prejudiced if the time limits were waived. As such historic claims are very unlikely to be allowed to proceed. Different time limits and considerations may apply in the civil courts to a claim for damages by that route.

Given that an employer can be liable for unlimited damages in a discrimination case, which could include very high (up to £30,000 in extreme cases) for hurt feelings, any allegations of this type need to be taken seriously, employees need to know that this sort of behaviour is not acceptable and victims need to know that they can be confident that they can disclose it to their employer.