Since justice can sometimes lead to harsh results it should sometimes as Portia put

Since justice can sometimes lead to harsh results, it should sometimes, as Portia put it in the Merchant of Venice, be “seasoned with mercy” Not so in these more prosaic times. A record sum of pounds 40,000 has just been made by a Scottish tribunal, of which pounds 12,000 was for injury to feelings. The Commission was therefore considering the introduction of a common plan, which would be binding on each Member State. Quite what this will mean in practice is not yet clear.For those applicants who finally succeed in proving their case – about 45 per cent – there is no ceiling to the amount of damages that can be awarded.

But in July this year, the European Commission announced that it had not “led to sufficient measures being adopted by the Member States” to reduce levels of sexual harassment. In fact, what it can do is to reduce levels of sickness and absenteeism because women know that they can rely on the employer to respond quickly and sensitively to a complaint.”Although the Code is not legally binding, it has been widely used by tribunals as a hallmark of good practice. In other words, that the employer is not liable for the actions of his employee. Sara Leslie says that “this is the major argument which employers now use and has become the main battleground in sexual harassment cases”.But even if the employer loses this argument, he can still defend the claim if he can show that he took “such steps as were reasonably practicable” to prevent the harassment.

The European Commission Code of Practice makes a number of recommendations as to how employers should deal with allegations of sexual harassment. It suggests that a policy statement is drawn up, outlining behaviour which is unacceptable at work, which should then be brought to the attention of employees. There should be clear procedures to follow in the event of a complaint, and managers should be trained in how to handle investigations.According to a spokesperson for Women Against Sexual Harassment, “employers think that following the Code will lead to further claims. To satisfy a tribunal, the woman has to show first that she was treated less favourably than a man, and then that she has suffered some “detriment” as a result. Surprisingly, there does not have to be a sexual motive for the harassment, but the applicant has to prove there was some animosity because of her gender.Alternative remedies, though less common, include claims for constructive dismissal, prosecution for assault under criminal law, breach of contract, or even a claim for personal injury, such as an illness or disease triggered by the harassment.One of the biggest obstacles to proving an allegation of sexual harassment is the defence that the harasser was not acting in the “course of his employment”. According to Sara Leslie, a solicitor specialising in discrimination law, the case “has got to be looked at from the applicant’s point of view.

She can be cross-examined by the employer as to her sensitivity to the issue, but the subjective approach is now generally accepted by tribunals.”Because there is no specific law against sexual harassment, the normal route is to bring a claim under the Sex Discrimination Act. Ms Poole’s female supervisor, for instance, insisted that any discussions about sex were light-hearted, and that the comments made by Mrs Butland were “just compliments, really”. At least one female journalist has expressed surprise at Ms Poole’s complaints, arguing that it is common for women at work to exchange intimate, emotional details of their lives.That is not, however, the way in which the courts look at things. She alleged that Mrs Butland commented on the size of her breasts, and once “wobbled” her own breasts in front of her.More than anything, this case highlighted that what is light-hearted banter to one woman can feel like verbal battery to another.