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Kara is an employee of Evens, a car leasing company. She works under the capacity of a senior relationship manager and have been working from 2017. Kara had applied for a job opportunity in the said company that would upgrade his position and was willing to attend the interview. The Managing director of the company, Alex had suggested Kara that she wears a ‘red velvet skirt that shows off her legs for the interview. Kara was disturbed and naturally so by the remark and she opted out of the interview since it made her uncomfortable. This hindered her from availing an opportunity of growth in her career due to the such a sexual remark.
Any form of harassment in any scenario can be detrimental to the mental health of a person as well severely impacts the work environment the individual is working in making their professional life stressful. This issue of harassment and bullying especially, sexually have been discussed and debated widely due to the #Metoo Movement that has rapidly come about and resonated with countries all over the world, portraying the devastating position of victims being harassed regularly in their work place and remaining unaccountable for the lack of a clarified understanding of what sexual harassment may constitute.
UNISON has given a clear position of bullying at a workplace where any individual or a group of individuals are intimidated, harassed and humiliated on a continuous basis undermining the authority and position of the employee. The Equality Act, has been instrumental in defining the types of sexual harassment that may arise but many judgments over the years have taken the liberty to interpret the kinds and ways which harassment may take place in a work environment.
However, cases like Hill v. Thomaswhere the plaintiff, Anita Hill had sued the defendant, a renowned politician for an account of sexual harassment but she failed to get justice as she did not have sufficient evidence neither had strong arguments in her favour which led to a blow of movement which awakened people and raised debates on how such a prevalent offence is being normalized just due to the lack of strong evidential points. In cases of sexual harassment or bullying, evidences are hard to come which is often manipulated and used but the judiciary has taken an active role in keeping the ambit of interpretation wide. The Trade Union Congress has found that there has been a rapid increase in the number of such cases filed where 52% of women and about 63% of younger women and about 19% of the men felt exploited and sexually harassed in some form.
Section 26 of the Equality Act, 2010 describes the various forms of sexual harassment under the Act. The treatment rendered to Kara can be called a verbal sexual harassment that is not only offensive but also intimidating, unwanted and has a sexual connotation from her employer making her uncomfortable and creates a humiliating and offensive environment for her. The employer however violates Section 40 of the Equality Act, 2010 where the employer is vested with the liability not to harass the employees either individually or vicariously. Kara can take individual action through this Act and in many situations the Equality and Human Rights Commission might intervene and investigate in case such an unlawful act is committed.
The Protection of Harassment Act, 1997 also provides protection to victims of harassment even though it is not restricted to workplace only but does confine the concept of verbal abuse or harassment under its ambit. If Kara takes recourse of this act she can either report to the police, making Alex criminally liable for his Act or initiate a claim through a civil proceeding , claiming damages against a civil claim.The High Courts and County courts deal with matters where the employers act in breach of their responsibility to ensure a safe environment for the employees both physically and psychologically.
The case of Driskel v Peninsula Business Services raised important questions and discussion around the treatment of sexual harassment as the terms were not clearly defined neither could be referred to in the Sex Discrimination Act, 1975 but this case is very similar to the position of Kara in the current scenario and discussing this case shall be highly relevant.
The plaintiff, Miss Driskel was an employee of Peninsula Business Services as a consultant. However, her immediate head Mr. Huss had scheduled an interview for her promotion but right before the interview, much like Kara, her employer or head told her to wear clothes that were transparent and showed her cleavage. This remark was highly offensive and intruded her private space making it a humiliating and unwanted sexual remark. Miss Driskel, had raised a complaint but her compliant was not entertained and she sternly stood in her position to not return to the job back unless Mr. Huss, the offender be removed from his position. The firm instead decided to dismiss her. She initiated a Tribunal claim for both charges now of sex discrimination and unfair dismissal. The Employment Tribunal had not favoured her as they had found no instances of any harassment under both the charges and held that Miss. Driskel had not objected to such comments. This decision was criticised by the Employment Appeal Tribunal as it was decided that cases of sexual harassment cannot be seen in an isolated light as it drives away from the purpose which was primarily held in the case of Court of Appeal in King v Great Britain.
An extremely wide and broader observation made way for such sexual harassment case as it was held that Mr. Huss being at a superior position making such vulgar remarks as a heterosexual man to another heterosexual man, which was raised as a defence was absolutely pointless since such a remark would not be given the same position as it was to a heterosexual woman. The connotation would certainly be different and intended to attack the dignity and vulnerability of Miss. Driskel who was technically at the mercy of the person who would conduct her professional interview. Thus, the defense of Mr. Huss making such sexual comments to his male colleague as opposed to a female employee would be starkly different and thus a position of unequal treatment is witnessed here. Thus, the Employment Appellate Tribunal held the behavior and conduct of the defendant to be highly discriminatory in nature.
Position of Jasmine
Jasmine has been working under the capacity of ‘Self-employed contractor’ in the same company as Kara named Evans from the year 2017. Jasmin is not an employee of the company but works under a “contract for service”. The position of Jasmine is different than an employee as it does not provide her with employment rights but she is also not obligated to provide any kind of service other than what is defined within the agreed contract which was either verbal or written. The employer of Alex in this case cannot exert unnecessary control over Jasmine, generally the status of a self-employed contract provides greater freedom abiding by the terms of contract between the two parties. The entire relationship between and employer and a self-employed contractor lies on the obligation of Jasmine to perform her tasks and get payment from the employer in return. The position of self-employed individuals have been determined over a period of time and through various case laws that have come into being. In comparison with employees and workers, the self-employed contractors are mainly provided protection against any form discrimination in workplace, health and safety and from data protection mainly.
However, the Managing Director Alex had insinuated sexual connotation towards Kara which Jasmine was unknown of and she appeared for the interview for promotion but once she received the promotion she was told by the Managing Director that her promotion shall be on a probationary basis.
The probationary period in a contract is not a mandate but is utilized by the employers to ascertain the position of the employee as a trial period to introduce the functioning of a company with its employers. It is also allowing the employer and employee to build a work relationship and in the case of White v London Transport Executive ,this period is ensured to be used to help the employee to achieve better understanding of the desired role or in the case of Post Office v Mughal , the inherent interest in building the relationship between an employer and employee is shown.
The employees of a company reserve the right not be dismissed in an unfair manner, leaves, redundancy pay etc. The concept of self-employed contractors have not been laid down under the Employment rights Act, 1996 but the case of Ready Mixed Concrete (South East) Ltd v the Minister of Pensions and Natio-nal Insurancea few tests were laid down to ascertain the position of such contractor who were starkly different than employees.
On this ground, Jasmine being a self-employed contractor has an independent control over the service provided by her to the company and the relationship shared between Jasmine and Alex can in no way be claimed as employee-employer relationship. Secondly, Jasmine has been a self-employed contractor from the year of 2017 making her have enough knowledge and experience in the firm, denying the first requirement of a probationary period. Secondly, the probationary period is not specifically mentioned anywhere neither is the length of such a period but such a trial period is enforced for any outsider who has joined the company without any prior knowledge and secondly such a period can be initiated purely against an employee by an employer which must be incorporated in the terms and condition signed by the parties while the employment status resumed. The position of Jasmine does not occupy the position of an employee and therefor ethe concept of probationary period should not apply at any instance.
Even in cases of promotion the contract between the employer and employee may also reinforce the clauses of introducing probationary period since it’s a new role and the employer may want to provide a learning base for the employee as well as familiarize the employer with the working ability of the employee but if Jasmine still functions under the capacity of a Self-Employed contractor after promotion, the need of probationary period should not arise as she is not an employee at all. Thus, Jasmine shall be protected from any kind of dismissal even if it is fair within the period of her “Contract for service” with the company by exercising her legal rights as a self-employed contractor.
UNISON, The Public Service Union, “Harassment at Work” A UNISON guide, 2016 < https://www.unison.org.uk/content/uploads/2016/12/24159.pdf > accessed on 14th January, 2021
Fry, Ellie, 2020, Independent, “Sexual harassment at work: what are your legal rights and what to do if you don’t want to approach your employer” < https://www.independent.co.uk/life-style/women/sexual-harassment-work-advice-legal-lawyer-trade-union-equality-act-a9705681.html > accessed on 14th January, 2021
Government Equalities Office, Consultations of Sexual Harassment at workplace, “ Legal Protection under Equality Act, 2010” < https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/816116/Technical_consultation_-_FINAL.pdf > accessed on 14th January, 2021.
Labour & European Law Review , Thompson Solicitors" Sex Harrasment: Eat Goes Further” Weekly Issue 46 - May 2000 03 May 2000 < https://www.thompsonstradeunion.law/news/lelr/weekly-issue-46-may-2000/sex-harassment-eat-goes-further > accessed on 4th January, 2021
Contractor calculator.CO.UK , “Independent contractors – what are they? Employed or self employed?” < https://www.contractorcalculator.co.uk/independent_contractors_employed_or_self_employed.aspx > accessed on 14th January, 2021
L& E Global, United Kingdom, Overview (2017), “ Legal Framework differentiating employees from independent contractors < https://knowledge.leglobal.org/eic/country/united-kingdom/ > accessed on 14th January, 2021
LANDAULAW Solicitors, “ Employment Law – probation”, < https://www.landaulaw.co.uk/probation/ > accessed on 14th January, 2021
Caggiano, Christopher “The Inc. Faxpoll” Mutimedia Publications Inc. 1992
The Equality Act, 2010
The Employment Rights Act, 1996
Sex Discrimination Act, 1975
The Protection of Harassment Act, 1997
Hill v. Thomas, Record No. 1113-17-2 (Va. Ct. App. Apr. 17, 2018)
Driskel v Peninsula Business Services IRLR 2000 151
Court of Appeal in King v Great Britain- China Centre 1991 IRLR 513
White v London Transport Executive  IRLR 261, EAT
Post Office v Mughal  IRLR 178,  ICR 763, EAT)
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