... most conduct that would have been sufficient to justify a discrimination or sexual harassment claim may well be oppressive and unacceptable and cause anxiety, alarm or distress ...
It is quite a common occurrence these days to find at the first meeting with a client that he or she has a perfectly good discrimination claim against the firm or LLP in which he or she has been a partner or member, but that the claim is barred by the very short limitation period (three months) applicable to discrimination and other claims in the Employment Tribunal. Such claims encompass discrimination on the grounds of age, race, nationality, religion (including the absence thereof), gender and sexual orientation, as well as sexual harassment.
It is pretty grim for someone who has a good claim under one or more of these heads, who has taken a bit of time to compose themselves after what may have been a traumatic ejection from their place of work, to find that they have no remedy in the Employment Tribunal because they have left it too long.
However, all may not be lost. The civil remedy under section 3 of the Protection From Harassment Act 1997 is often available to a potential discrimination claimant. The harassment cause of action has a limitation period of six years. Its ambit goes far beyond discrimination.
In order to establish such a claim against one or more partners or members or an LLP, the claimant has to prove the following:
- 1The defendant(s) pursued a course of conduct (on at least two separate occasions) which:
- amounted to harassment of the claimant; and
- The defendant knew or ought to have known (an objective reasonable person test is applied) amounted to harassment of the claimant; and
- 2The conduct was oppressive and unacceptable.
The above of course begs the question what is harassment. Harassment means causing anxiety, alarm or distress. Unlike a personal injury claim it is not necessary to demonstrate psychiatric injury (or negligence, or foreseeability).
Conduct includes speech, but the speech must go beyond “the ordinary banter and badinage of life”.
There is no requirement for other illegality. Therefore the harassment does not have to be capable of amounting to a criminal act other than harassment, or another tort.
Harassment does require conduct outside the norm. That said, most conduct that would have been sufficient to justify a discrimination or sexual harassment claim may well be oppressive and unacceptable and cause anxiety, alarm or distress.
Each case of course turns on its own facts, but as management regimes grow tougher in the poor economic climate, practices need to consider carefully what is and is not acceptable conduct in the drive to “incentivise” partners/members.
Few would doubt that what might be characterised as bullying of one sort or another does take place between partners in some firms, even in professional practices, whether by way of autocratic rule, offensive office banter, strategic manoeuvring, or opinion-shaping or other forms of “ganging-up”.
Personal damages (for anxiety, etc) and actual financial loss can be recovered, and there is no limit. The usual requirements of mitigation apply, but subject to that it is open to partner and LLP member claimants to recover very substantial sums. In one of the leading cases, which was an employment case involving long-term bullying, which resulted in two nervous breakdowns, the recovery was in excess of £800,000 plus legal costs.
In many cases there may well be a cross-over or overlap between harassment and the duty of good faith. However, in many LLP environments the duty of good faith may well not apply, even by implication, and in others it may be expressly excluded under the members’ agreement. Also, breach of the duty of good faith is unlikely to give rise to the ability to claim damages for non-financial injury (at least not without establishing psychiatric injury). There may be types of conduct which arguably engage only one of these causes of action, so unless there is good reason to do otherwise one should consider pursuing harassment and breach of the duty of good faith in tandem.
