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LPC: PLR AND WRITING

WRITING: EXAMPLE LETTER OF ADVICE

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POST SGS 1 ACTIVITY: EXAMPLE LETTER OF ADVICE Legal Practice Course

PRICE PRIOR 68-70 Red Lion Street London WC1R 4NY Tel: 020 7430 2304 Fax: 020 7404 1389 DX 35719 Bloomsbury 1 e-mail: [email protected]

Your ref: Our ref: AM/DD-1234

Mr H Maxwell Managing Director Design and Dress Limited 1 Picton Gate London N1 5HN

[Date- insert in PP house style]

Dear Mr Maxwell Harassment complaint Further to our meeting on [insert date], I write to thank you for your instructions and to provide you with my advice regarding a potential claim against Design and Dress Limited (the ‘Company’). I understand that an employee, Susie Baker (‘Susie’), made a complaint of harassment against another employee, Trevor Harding (‘Trevor’), which resulted in Trevor being formally disciplined. Both Susie and Trevor remain employed by the Company. You have recently discovered that Susie has now made a formal complaint to the police and you are concerned that she will instigate civil proceedings against the Company with a view to seeking damages.

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LPC: PLR AND WRITING

WRITING: EXAMPLE LETTER OF ADVICE

I have set out below my analysis of the law and advice in relation to this issue. In summary, if a court finds Trevor’s actions are sufficient to be classed as harassment, the Company can be ordered to pay damages to Susie. Harassment In order for the Company to be liable for Trevor’s actions, it must first be established that Trevor’s actions amount to harassment in law. There is an offence of harassment and it is possible for this offence to be committed within a work environment. However, when deciding whether an individual’s behaviour is serious enough to amount to the offence of harassment, the courts are aware that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. A court will have to determine whether Trevor’s behaviour has crossed the boundary from that which is unattractive and unreasonable to conduct which is oppressive and unacceptable. Whether conduct is serious enough to be ‘oppressive and unacceptable’ may depend upon the social or working context in which the conduct occurs. In a recent case, insensitive, belittling and overbearing conduct did not amount to harassment when it occurred within a stressful working environment amongst case-hardened police officers. The court found that, although what happened was more than a clash of personalities, it was not conduct calculated to cause distress. Furthermore, while the behaviour was clearly unacceptable, it was not oppressive to the level necessary for criminal sanctions as it was neither intimidating nor tormenting. Susie’s allegations against Trevor include: a) setting her unrealistic deadlines; b) refusing to allow her to attend courses with the rest of her team; c) undue criticism of the quality of her work; and d) being rude to her in front of other employees. While Trevor’s conduct appears to have caused Susie alarm and distress (a necessary element of the offence of harassment) it is unclear whether it would satisfy the ‘gravity test’. On the one hand, it could be capable of being conduct that is ‘oppressive and unacceptable’ due to the nature of the particular workplace and the conduct alleged. On the other, if it could be argued that it was not a course of conduct calculated to cause distress and not oppressive to the requisite level, then it would not be of the severity necessary for criminal liability. The fact that the internal procedure resulted in Trevor being disciplined is not, in itself, evidence that his conduct was harassment in law. The Company’s liability The Company can only be liable if Trevor’s conduct amounts to harassment. A finding of harassment can lead to a claim for damages which ‘may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.’ This award of damages can be made against the person responsible for the harassment (in this case Trevor) or against that person’s employer (i.e. the Company) provided the conduct of the employee in question was closely connected with acts which he was authorised to undertake. As the allegations against Trevor relate to his employment, the Company would be found vicariously liable for his actions. Unfortunately, although the Company took steps to discipline Trevor and to ensure that his behaviour is not repeated this does not provide a defence and therefore damages can be awarded to Susie.

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LPC: PLR AND WRITING

WRITING: EXAMPLE LETTER OF ADVICE

The extent of the unlawful conduct will be reflected in the amount of damages awarded, but fortunately the courts have tended towards modest awards in these cases. Advice The Company will be vicariously liable, and will have no defence available to it, if it is found that Trevor committed an act of harassment against Susie in the course of his employment. If Susie pursues a claim for damages, I will be able to consider the precise allegations made against Trevor in the context of your workplace environment, gather any necessary additional information from you and advise fully on the merits of the claim. Meanwhile, I hope that this answers your questions, but please do not hesitate to contact me should you have any queries at this stage.

Yours sincerely

Andrew McNicholl Partner

Word Count: 792

The partners in the firm are solicitors or registered foreign lawyers or registered European lawyers. A list of the partners and their professional qualifications is open to inspection at the above address. Authorised and regulated by the Solicitors Regulation Authority Firm SRA number: 7054784 Price Prior is a fictitious law firm for teaching purposes only

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