This document discusses sexual harassment, bullying, and harassment at work. It defines sexual harassment as unwanted conduct of a sexual nature that violates a person's dignity or creates an intimidating environment. Bullying is described as an abuse of power involving constant unjustified criticism over a long period. Harassment can have a strong physical component linked to attributes like gender or race, while bullying involves many trivial incidents. Claims can be brought under the Protection from Harassment Act 1997, discrimination legislation, or an organization's internal policies. Employers can be vicariously liable for employee actions in the course of employment, but have defenses if reasonable steps were taken to prevent harassment. The document analyzes the case of Michalak v Mid Yorkshire Hospitals

1. SEXUAL HARASSMENT
& BULLYING AT WORK
Mark Broad JoanneVernon VictoriaWhelan

2. Overview
•Sexual Harassment
•Bullying
•Harassment
•Michalak v MidYorkshire Hospitals NHSTrust

3. The Legal Gordian Knot

4. Sexual Harassment
Unwanted conduct of a sexual nature which has
the purpose or effect of either violating a person’s
dignity, or creating an intimidating, hostile,
degrading, or offensive environment for them.
Equality Act 2010:

5. Bullying
•What is bullying?
•Common complaint - Generally to be avoided
•Breach?
•Foreseeability?

6. Bullying vs Harassment
Harassment
•A strong physical component and is usually
linked to gender, race, disability or physical
violence
Bullying
•An abuse of power comprising a large number
of incidents (individually trivial) over a long
period comprising constant unjustified and
unsubstantiated criticism

7. Harassment – routes to bring a claim
1. Protection from Harassment Act 1997
– Objective
2. Discrimination Legislation
– Mixture
3. Internal Staff Handbook
– Subjective

8. Protection from Harassment Act
1997
•Course of Conduct (min 2 incidents) as whole
•Oppressive and Unacceptable
•Likely to cause e.g. alarm, distress or anxiety
•Criminal?

9. Ready Reference Table
Claim
Personal
Injury
PHA
Unfair
Dismissal
Discrimination
Nature Tort Any Contract Prot. Chars
Feelings No Yes No Yes
Actual Injury Yes Yes No Yes
Limitation 3 years 6 years 3 months 3 months
Forum Court Court Tribunal Tribunal
Strict Liability No! Yes No No
Cap No No Yes No

10. Who is liable?
• Employer for acts of Employee -Vicarious Liability
– breach of statutory duty by an employee acting in the
course of employment
– The employer may be innocent
– This therefore imposes strict liability
Employer for temporary deemed employment
Employer for those under their authority
 Employee claim against employer when they have been
harassed by someone else

11. Not absolute…
Statutory defence…
•‘In course of employment’
 Conduct must be ‘sufficiently closely connected to
the employment’
•Statutory defences
 Reasonable steps (Equality Act 2010)
 Reasonable conduct (PHA)

12. MICHALAK V MID
YORKSHIRE HOSPITALS
NHS TRUST
JoanneVernon

13. Heads of Claim
•Unfair Dismissal
•Unlawful sex and race discrimination
•Subjected to detriment by reason of having
made a qualifying protected disclosure

14. The Injury
•“Chronic disabling psychiatric condition best
understood as a form of chronic PTSD with
chronic depression and anxiety” (Prof Hirsch)

15. Past Losses
• Unfair Dismissal
• Discrimination
• Non-Pecuniary Loss (Injury to feelings, personal injury,
agg damages etc)
• Loss of Earnings
• Past Care
• Interest

16. Future Losses
• Future Loss of Earnings
• Private Practice
• Life Insurance
• Pension Loss
• Provision of Future Care
• MedicalTreatment
• Enhancement (15% uplift for failure to comply with statutory provision)
• Taxation (Grossing Up)

17. The total award….
£4,452,202.60

18. Quiz answers and poll