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Employment Law Briefing Volume 6 | Autumn 2012

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Employment Law Briefing Volume 6 | Autumn 2012 Employment Law Briefing Volume 6 | Autumn 2012 McGuireWoods’ London Bullying and Harassment Online Employment Team Members: By Andrea Ward Scott Cairns, Partner +44 (0)20 7632 1664 ocial media can be good for harassment, which, with media interest, [email protected] business, but dangerous when can damage a company’s reputation misused. Employers are learning and customer goodwill further. Jonathan Maude, Partner S to tighten acceptable use policies +44 (0)20 7632 1605 and set standards for emails and In one recent case a software engineer [email protected] professional social networking but was jailed for the sexual harassment of work colleagues using email and Dan Peyton, Partner there will always be difficulties applying +44 (0)20 7632 1667 company rules to employees’ personal Facebook messaging, falsely claiming [email protected] lives and online behaviour. The growth that she was having affairs with them. of bring-your-own-device (“BYOD”) Whilst this is an extreme example, it Doug Styles, Senior Associate adds another layer of complexity to the underlines the risks for employers; if +44 (0)20 7632 1670 bullying or harassment is reported, [email protected] ongoing privacy debate. How far can, or should, an employer seek to control or visible, action should be taken Andrea Ward, Senior Associate errant employees? immediately to protect staff and deal +44 (0)20 7632 1697 with the perpetrator through the usual [email protected] Individuals and their employers may be company procedures. sued for discrimination (for example Rob Washington, Associate on the grounds of sex, race or age) or Contact over the internet seems to +44 (0)20 7632 1693 harassment as a result of inappropriate result in people going further in their [email protected] or illegal content posted online. abuse than they would do face to face. However, any emails sent, comments To reduce this risk, employees must posted or messages left can be traced be aware of (and trained on) the back to them as part of an investigation McGuireWoods London LLP policies and understand the possible and may well be used as evidence in a 11 Pilgrim Street consequences of breaching them, disciplinary process. Unfortunately, London EC4V 6RN (discipline and possible dismissal). For information has often already been United Kingdom example, in the case of Gosden v Lifeline seen by others and passed on, escalating DX 249 London/Chancery Lane Project Limited last year, an Employment the breach and bringing it to the Tribunal dismissed an employee’s attention of customers and other third claim of unfair dismissal, following parties. Further, information recorded his forwarding of an offensive email, online may never be fully removed to a work colleague, from his home Employment Law Briefi ng is intended to and can leave an indelible stain on a provide information of general interest to computer, in his own time. His actions company’s reputation. the public and is not intended to offer legal were found to be in breach of his advice about specifi c situations or problems. McGuireWoods does not intend to create employer’s equal opportunities policy, By setting policies in advance, an attorney-client relationship by offering regardless of the fact that this was companies should be able to maintain this information, and anyone’s review of the information shall not be deemed to create personal email use. a level of control over employees’ such a relationship. You should consult a online behaviour and deal with any lawyer if you have a legal matter requiring Social media and BYOD policies issues. Under the Data Protection Act attention. For further information, please should also be closely tied to equal contact a McGuireWoods lawyer. 1998, it will be necessary to consider opportunities and anti-bullying ©2012 McGuireWoods LLP the level of intrusion and justify any and harassment policies, to cover employee monitoring as part of an situations where employees engage in investigation. However, where the inappropriate conduct outside work. company’s standards are clear and there Bullying and harassment online, or is a legitimate business or legal reason ‘cyber bullying’, takes many forms to gather and rely on online evidence, and in serious cases the police may be this is more likely to be justified www.mcguirewoods.com involved. Criminal proceedings may as reasonable, proportionate and be brought against individuals for necessary. Employment Discrimination in the US and UK – More Similar Than We Think? By Rob Washington S employment law is often thought of as less restrictive than its UK equivalent. In fact, US law Uon discrimination is very similar to the European model, and many UK protections from discrimination have been modelled on their US counterparts. UK Discrimination Law UK discrimination law arises mostly from European Union law (i.e. the EU Treaty and a number of EU directives which prohibit discrimination on a number of grounds, including gender, religion/belief, sexual orientation, age, disability and California, for example, offers protection from race). discrimination on grounds of, among others, sexual orientation and gender identity; the District of Columbia These protections are implemented through the UK provides protection from discrimination on grounds of Equality Act 2010, which also provides UK employees with political affiliation and attendance at college/university; additional rights beyond those provided by the EU, in and the state of Michigan makes height and weight relation to marital/civil partnership status, gender identity protected characteristics. and reassignment and pregnancy and maternity. In the USA, a similar ‘top-down’ approach arises as a Differences Between US and UK Laws result of the country’s federal model. Federal law provides There remain some significant differences. For example, in discrimination protection on a number of grounds at the US, age discrimination protection is only extended to Federal level, which effectively provides a minimum employees aged 40 and over, who allege that they have been threshold of protection, in much the same way as the EU discriminated against by reference to younger workers. In does for its member states. However, State congresses contrast, in the UK, this protection will apply equally to a are able to legislate on employment and employment younger employee alleging discrimination on the basis of legislation, therefore, varies from state to state. his or her youth. The US Position One of the protected characteristics in the UK is sexual orientation and gender identity protection, which is not a Federal Law protected characteristic at US federal level, although many Federal laws on discrimination date back to 1866, but states provide equivalent protection. the majority come from the civil rights movement of the 1960s, when the majority of protections were set out in Bringing a Claim Title VII of the Civil Rights Act of 1964, for race, colour, In the UK, the effect of a breach of discrimination gender, pregnancy or religion. Other federal Acts prohibit legislation is to create a claim for compensation for discrimination on grounds of age, disability and genetic financial loss and injury to feelings, subject to a duty information. of mitigation. An individual must bring a claim in the State Law Employment Tribunal. The onus is on the individual to show an act or omission consistent with a finding of Many states have their own anti-discrimination laws. Some discrimination. Having established this, the burden shifts to go no further than the federal minimum whereas others go the employer to prove that discrimination did not occur. further. Equal Employment Opportunity Commission Types of Discrimination (EEOC) The major difference in US discrimination claims comes from The types of discrimination prohibited in the the role of the Equal Employment Opportunity Commission US and UK are similar. (EEOC), a federal agency which must review most ‘charges’ UK Term US Equivalent (or complaints) of discrimination before an employee will direct discrimination disparate treatment be permitted to bring a claim to court. Where a state-level indirect discrimination disparate impact prohibition has been violated, a similar body known as a harassment hostile work environment Fair Employment Practice Agency will often consider the victimisation retaliation complaint (and will often discharge the EEOC’s duty at the same time). 2 Employment Law Briefi ng | Autumn 2012 The EEOC reviews over 100,000 charges of discrimination Conduct of Proceedings in each year, to consider whether there is a violation of Like the UK, the primary remedy under US discrimination discrimination law. In the majority of cases, no clear violation law is compensatory relief for loss of earnings and is found, and the employee is issued with a ‘Notice of Right emotional harm. Unlike the UK, US provisions go further to Sue’, allowing the employee to pursue the claim themselves in remedy than mere compensation, providing for punitive against their employer in court in a similar manner to a UK damages in cases of serious wrongdoing. The regime for claim. Where the EEOC’s investigation does find a violation, age discrimination is markedly different from claims for however, its powers are wide ranging and allow it to sue the other protections, giving rise to an award of liquidated employer on behalf of the employee or on its own account damages calculated at double the actual back pay owed to (through its Office of General Counsel). the plaintiff. Equality & Human Rights Commission (EHRC) On costs, the position is again similar. Costs in the UK The EEOC’s other functions mirror those of its cousin, the Employment Tribunals are awarded only in respect of UK’s Equality & Human Rights Commission (EHRC). The vexatious or unreasonable conduct and in the US for EHRC is a non-departmental public body with a similar frivolousness or misconduct by the plaintiff. public policy mandate to that of the EHRC, albeit without the obligation to review every charge of discrimination.
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