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Anna Denton-Jones Bullying and Harassment Conflict Employment Law Harassment Sexual Harassment

Widening the law on harassment — It’s not all about sexual harassment

Carozzi v University of Hertfordshire [2024] EAT169 related to a Brazilian national of Jewish ethnic origin who was working at the University and resigned during her probationary period, bringing a number of claims.

Amongst those claims, was a harassment claim on the ground of race. Her complaint arose out of comments around her accent which was very strong and made it difficult for her to be understood. These comments were found by the original Tribunal not to be harassment, on the basis that they were not motivated by race but were instead discussing her comprehensibility when communicating orally.

The Employment Appeal Tribunal overturned this finding, holding that looking for a motivation was wrong. Whilst treatment can be related to a protected characteristic where it is “because of” it, it can also occur where the alleged harasser is not motivated by the characteristic at all.

The Employment Appeal Tribunal noted that an accent can be an important part of somebody’s national or ethnic identity and criticising their accent could therefore be related to the protected characteristic of race, and violate that person’s dignity.

This case confirms the position that the test for being “related to” a protected characteristic can be satisfied by establishing an objective link between the conduct and characteristic, without the need for the conduct to be motivated by the characteristic. This makes it much wider than the “because of” or “reason why” test which applies in direct discrimination claims.

Employers need to train managers to make sure that they understand that picking somebody up on what might be a challenging accent to understand, is likely to get them into difficulty.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Communication Conflict Dispute Management Employment Law

Respect in the workplace goes both ways

Happy New Year.

I am in the middle of preparing a training session on ‘respect in the workplace’. Naturally in that session we will be discussing what ‘respect’ means and looks like on a daily basis for the delegates.

I have been reflecting on the trend I have been seeing where certain individuals behaviours are overstepping the mark. For example:

  • They might have a grievance against the organisation but write quite toxic emails to the manager concerned.
  • These might be sent at night, early hours of the morning or at weekends or when they know a manager is on holiday.
  • Typically these emails demand a somewhat immediate response from the recipient.
  • The behaviour gets worse if the person perceives that the manager has not responded fast enough.
  • The sender is undoubtedly dumping all their emotions about something on the recipient.
  • The emails can be above average in length. A recent example of this was a manager having a meeting with someone following normal management processes on a Friday afternoon. Cue a 26 page ‘grievance’ the next day, a Saturday.

All of this might fall within what Acas calls ‘extreme difficult behaviour’. All of those who work in this space have become inured to having the odd one – we used to joke about that one personnel file that outpaced all others.

However, this is becoming more normalised. I think this is because of the general themes outside of work of expressing your views on social media, a more polarised world and people post pandemic being wrapped up in only thinking about themselves.

What is clear is this is not healthy for the recipient of this. One manager I have been liaising with mentioned her hair falling out as a result of dealing with ‘that’ person. We all get triggered when we see the name of the person who is doing this flash on our phones/inboxes.

Upward bullying is a thing. I’ve even witnessed people doing this to judges! What we are not great at is setting boundaries about this and putting some controls in place. I am struggling with this as much as you. What can we do?

The things I have thought of are:

  • Have a short policy on expectations around answering emails so it is clear what out of hours rules and KPIs on response times are.
  • Communicate to staff eg:- in newsletters that you expect all communications to be respectful and polite.
  • Be brave enough to call out the person being toxic – this becomes a performance management issue. You would be saying you are entitled to raise XYZ issue but not in the manner that you have.
  • Include in email footers the organisation policy that any email which is not respectful in tone will not be dealt with and then if people send problematic correspondence draw their attention to why they are not receiving a response.
  • Empower managers not to feel they have to put up with inappropriate behaviour – not encouraging cross grievances but saying it is OK to say when you are finding it hard to deal with something, speak out and we’ll agree a strategy.
  • Amend bullying policies specifically around this kind of behaviour – communicate that inappropriate emails won’t be tolerated
  • Write to warn people of the Protection from Harassment Act and that their behaviour could be tipping over into this.
  • Have a system of escalating upward bullying to a anti-bullying tsar who would step in and say disciplinary action could be taken if behaviour isn’t modified? Often the threat puts someone in their box.

Any other ideas?.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Disciplinary Dismissal Employment Law Performance Management Settlement Agreements Video

Video | Negotiating an exit where performance is the reason

Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video which discusses the situation where someone has been offered a settlement agreement where poor performance has been used as the context of the settlement agreement.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Employment Law Employment Rights Act 1996 Employment Rights Act 2025 Video

Video | Employment Rights Bill 2024-25

The Employment Rights Bill was introduced to Parliament on 10 October 2024.

The aim of the bill is to modernise employment rights legislation. Anna has prepared a number of videos which outline some of the changes the bill introduces:

This video discusses the duty to prevent sexual harassment and can be found here.

This video discusses the initial period of employment and can be found here.

This video discusses the removal of the 2 year qualifying period to claim unfair dismissal and can be found here.

This video discusses the position as regards the impact on redundancy and can be found here.

This video discusses the position as regards collective redundancy – so large scale redundancy and can be found here.

The videos were recorded on 30.10.2024.

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Anonymity Disciplinary Dispute Management Employment Law Employment Tribunal Video

Video | Anonymity of witnesses in disciplinary matters

Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video which discusses anonymity of witnesses in disciplinary matters.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Disability Discrimination Law Employment Law Reasonable Adjustments

Knowledge November 2024

Around this time each year, we focus on an in-depth employment law topic. This year in Knowledge November, we’re deep diving into reasonable adjustments for those with a disability. Click below to view the latest editions:

Knowledge November 2024 – week 1

Knowledge November 2024 – week 2

Knowledge November 2024 – week 3

Knowledge November 2024 – week 4

Anna Denton-Jones
Refreshing Law

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Anna Denton-Jones Bullying and Harassment Employment Law Sexual Harassment Video

Video | Sexual harassment legislation changes, part 2

Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video which discusses the new preventative duty in relation to sexual harassment and the amendment to the Equality Act that is coming into force on 26 October 2024. This is Anna’s second video on the subject.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Bullying and Harassment Employment Law Sexual Harassment Video

Video | Sexual harassment legislation changes, part 1

Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video which discusses the extension to our sexual harassment legislation that is coming into force in the autumn and some of the issues employers need to consider in this area.

Please note that the contents of this video is subject to any changes that are made in the Commission for Equality and Human Rights Guidance which is due out over the summer period.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Duty of Care Employment Law Video

Video | What happens if an employee is arrested?

Our latest video is available to view on the Refreshing Law YouTube channel – please click here to watch the video where Anna discusses the issues that can arise and may need to be considered when an employee is accused of a criminal offence.

Anna Denton-Jones
Refreshing Law

 

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Anna Denton-Jones Employment Law Redundancy

Redundancy consultation regarding a pool of one

In any redundancy situation, the employer is going to have to decide what selection process they follow. One of the key questions in such a process is whether a group of employees need to be pooled for selection with some kind of assessment taking place as to who stays and who goes or whether the pool just involves one person, in which case if that post disappears, then the person in post at the time is the one who is selected for redundancy.

In a recent EAT decision, Valimulla v AL-KHAIR Foundation found that it was unfair dismissal not to have consulted about the appropriateness of the pool. The individual concerned worked as a Liaison Officer covering the North West of England and there were other employees who did the same thing albeit in other geographical areas. As a result of Covid, work for Liaison Officers decreased across the country and the employer decided to place the employee at risk of redundancy in a pool of one. The other Liaison Officers were not placed at risk. Three consultation meetings were held with the individual about the redundancy in general but they did not consult about the appropriateness of the pool.

When it reached the Employment Tribunal, the original Tribunal accepted that there was a pool of one. The employee appealed and the Employment Appeal Tribunal allowed that appeal, holding the consultation on redundancy needs to take place at a time when it could make a difference, which of course would be right at the beginning of the process.

Make sure that if you do have a reason to choose a pool of one, that you document what your reasons for doing that are. Include consultation with the individual affected about your thought process, ie. give the employee the opportunity to challenge your thinking and make alternative suggestions. You will then need to weigh what they have said against your own process and decide what methodology is most appropriate.

This the second recent decision going to the root of redundancies reminding us of the importance of process, that shouldn’t be skipped.

Anna Denton-Jones
Refreshing Law