Harassment and Victimisation
There are 3 definitions of Harassment contained within the Equality Act 2010, a “general” type harassment, and harassment related to unwanted conduct of a sexual nature or because a person rejected or submitted to conduct of a sexual nature.
A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:
- Violating B's dignity, or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(Section 26(1).) Equality Act 2010
In deciding whether conduct shall be regarded as having the effect referred to above, the following must be taken into account:
- The perception of B.
- The other circumstances of the case.
- Whether it is reasonable for the conduct to have that effect.
(Section 26(4).) Equality Act 2010
The relevant protected characteristics for the purposes of specific protection from harassment are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation (section 26(5)) Equality Act 2010.
In relation to unwanted conduct of a sexual nature:
A also harasses B if A engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect referred to in the general definition above (section 26(2)). This is more traditionally known as sexual harassment.
Rejection of or submission to conduct of a sexual nature
A also harasses B if:
A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex.
The conduct has the purpose or effect referred to in the general definition.
Because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.
(Section 26(3).) Equality Act 2010.
It is important to note that the harassment does not have to be related to the individual complainant’s protected characteristic - harassment might occur, because, for example, generalised racist, sexist or homophobic comments are made within the workplace that are not aimed at the individual concerned but that nevertheless create a hostile, offensive environment.
It is notable that the harassment must have either the purpose (i.e be done deliberately) or EFFECT (not necessarily done deliberately to make a particular individual uncomfortable) of creating a hostile, degrading, humiliating or offensive environment. This could cover what is generally known as “banter” in the workplace i.e. it is not done with the intention of deliberately upsetting anyone.
Further, although there is no “free-standing” right in law to bring a claim for bullying in the workplace, the “general” harassment provisions of the Equality Act might entitle an employee to bring such a claim.
Additionally, although the individual complainant must show that they have indeed felt their dignity was violated and they were subjected to a hostile offensive etc environment and this is assessed from the point of view of the complainant (a subjective test), it must also be reasonable, (an objective test) for the complainant to have felt this way. Therefore it may be a defence for an employer to show that the complainant was over-sensitive, or that they have overstated their sensitivity contrary to evidence that they have engaged in similar conduct (e.g. “Office banter” or “sexual innuendo” etc) during their employment in the past.
It is important to be aware that an employer can be vicariously liable for harassment by one employee towards another, but it can be a defence for an employer to show that it took all reasonable steps to prevent such discrimination from occurring.
Victimisation occurs when an employee claims that they have done (or may have been about to do) a “protected act” and that they have been subjected to a detriment by their employer because of that actual or intended protected act. A protected act is defined in the Equality Act as:
- Bringing proceedings under the Equality Act 2010
- Giving evidence or information in connection with proceedings under the Equality Act 2010, regardless of who brought those proceedings
- Doing any other thing for the purposes of or in connection with the Equality Act 2010
- Alleging (whether expressly or otherwise) that an employer or another person has contravened the Equality Act 2010
An example of victimisation - an employee who has lodged a grievance about sex discrimination is subjected to a detriment, because of the grievance, by being overlooked for promotion or a pay rise which would normally have been awarded. An employer might successfully defend this type of claim by showing that there is no evidence that this treatment is linked to the employee’s complaint but, to the contrary, the treatment is actually for a non-discriminatory reason.
It is vital that employers have the relevant Anti-Bullying, Harassment and Discrimination policies in place. Employers must also ensure that they are clearly communicated and they train their workforce regularly on what constitutes acceptable and unacceptable behaviour. Our specialist employment solicitors can help and advise on how best you can protect yourself and your business - Call us today on 0161 785 3500.