Harassed but Happy?

James Carmody of Reculver Solicitors considers a decision in the UK Employment Appeals Tribunal that holds that if you are harassed at work you may not have protection if you took part in that ‘banter’ yourself


It’s normally fairly safe to assume that employees don’t enjoy being harassed by colleagues at work. However that is not always the case where someone has taken part in ‘banter’ of a similar nature, even if they do so in a misguided attempt to fit in.

In Thomas Sanderson Blinds v English (No.2) Mr English complained of homophobic 'banter’ and sexual innuendo by his colleagues under the 2003 Regulations (now replaced by the Equality Act 2010). The Court of Appeal held that someone who suffers anti-gay banter at work, even though his colleagues know him not to be gay, was still protected by the Regulations.

The case was then kicked back to the original Tribunal, which upheld a claim about only one incident of harassment: an article about Mr English in the in-house magazine which prompted him to complain. This was ‘a tipping point’, and beyond what he felt to be an acceptable level of personal attack and insult. The tribunal rejected all allegations of harassment prior to that because Mr English had participated in banter and name-calling, had written similarly offensive articles himself and was apparently good friends with his ‘tormentors’. In the circumstances the conduct had not violated his dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for him. On appeal (again) the EAT held that in such a case the victim must reasonably feel his dignity to have been violated or an adverse environment created to succeed in a claim.

Jokey cultures at work can easily degenerate into harassment, in which the victim at first tries to play along in order to try and fit in and been seen as a good sport. Employees may find it harder to prove such claims following this decision. Employers and managers should be alert to prevent that kind of culture arising, and give clear guidance in their Equal Opportunities/Harassment policy to help victims in that situation.

James Carmody is an employment solicitor at Reculver Solicitors based in Central London EC1 and covering the City of London and Canary Wharf. For more information see our pages on discrimination at http://www.reculversolicitors.co.uk/discriminationclaims.htm  or for our Kent office covering Canterbury, Ashford, Whitstable, Sandwich & Herne Bay at http://www.kent-employment-solicitors.co.uk/discriminationclaims.htm  

Boring but important. Tax on Severance Payments

It is commonly known that when making a redundancy or severance payment, up to £30,000 can be paid free of tax. If any payment which does not fall within the £30,000 exemption is made after the termination date and after the issue of the P45, the employer currently only has to deduct tax at the basic rate (currently 20%) under the BR Tax Code regardless of the level of earnings of the employee.

However after the 6th April 2011 under the Income Tax (Pay As You Earn) (Amendment) Regulations 2011 the full 20%, 40% or 50% (as applicable) must be deducted (using the '0T' tax code). The practical impact of this change is that, as a general rule, employers should make all termination payments before issuing the P45.

www.reculversolicitors.co.uk & www.kent-employment-solicitors.co.uk

Getting Pensioned Off

The abolition of the compulsory retirement age is a hot topic at present, and we will be writing again soon on that subject. On a related issue, it is also worth bearing in mind the proposed changes to the Stakeholder Pension system. At present if you employ five or more staff, you are obliged to have a stakeholder pension scheme in place to offer staff. The employer does not have to make any contributions to the stakeholder pension scheme however, and take-up has consequently been low.


However from October 2012 the new National Employment Savings Trust (NEST) scheme will be introduced in stages. NEST will be a national, low charge, workplace pension scheme any employer can use to comply with their duties imposed by the new pension regulations and has apparently been set up to help millions of people who currently don’t have access to a workplace pension, and who presumably don’t yet have a nest egg (apologies for the weak pun).

NEST will:

• Be a trust-based occupational pension scheme.
• Be run by NEST Corporation which will have a legal duty to act in the interests of scheme members.
• Be one of the qualifying pension schemes employers can use to fulfil their new duties under the pension reforms.
• Have online access & be easy to administer.
• Allow employers to hand over their administration to a third party if they wish.
• Belong to the individual, meaning employers will not have to look after the pots of ex-workers. This also means several different employers can contribute to the same member’s pot over their working life.

The big difference however is that minimum employer contributions will be required. Minimum contributions will be phased in starting from 2012, as follows:

• Oct 2012 to Sep 2016: 1% by employers and 1% by employees (including tax relief)
• Oct 2016 to Sep 2017: 2% by employers and 3% by employees (including tax relief)
• Oct 2017 onwards: 3% by employers and 5% by employees (including tax relief)

For many employers that don’t currently provide pension schemes, this will be a big and unwelcome additional cost, and which they may recoup by not making incremental pay increases in those years. For more information please see http://www.nestfacts.co.uk/. However the more people that get adequate pension cover in place, the more that will actually be in a position to retire when they reach the age of 65.

James Carmody is a solicitor based in Central London specialising in Employment Law.
http://www.reculversolicitors.co.uk/
http://www.kent-employment-solicitors.co.uk/