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Harassment in the Workplace

Definition of harassment

The Equality Act 2010 defines harassment at Section 26 as follows: 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.

Please note that sexual harassment has a further definition relating to rejection or submission of the unwanted conduct.

Protected Characteristic

A protected characteristic is related to any of the following:

Maternity is notably missing from this list but harassment relating to pregnancy can be dealt with in many cases under the protected characteristic of sex.

Unwanted Conduct

This means any undesirable verbal or physical act.

Examples might include bottom pinching, racist name calling or hanging calendars with pictures of topless models in the office.

Intention is irrelevant

The law does not concern itself with whether there was any intention on the part of the wrongdoer to offend his or her victim. Even if a colleague has no idea that they are causing offence or wouldn’t be offended themselves by their words or actions they are still liable for them and so is their employer. What matters is the perception of the victim regardless of whether the rest of the workplace considers what is being said or done to be banter.

Joining in

It is quite a common and understandable reaction by those being harassed to initially try to play down the harassment or to “laugh it off” as a coping strategy. It can be very difficult for people already feeling vulnerable in a workplace to tackle issues head on and to “make a scene”.

Once again, this does not mean that they then have no right to make a claim. It is worth remembering that an employment tribunal may take the Claimant’s reactions into account when considering the impact any harassment may have had, their ability to withstand the harassment and how robust a person they were. This could reduce the level of compensation a tribunal is prepared to award for injury to feelings.

Single Acts of Harassment

A single discriminatory act may, in theory, constitute harassment where it is sufficiently serious.

Oversensitive Claimants

Intention is irrelevant but the test here is “violating dignity” or “causing an intimidating, hostile, degrading, humiliating or offensive environment”. Employment Tribunals will consider the genuine nature of any Claimant’s upset. Trivial acts are insufficient to be caught by the definition harassment and an Employment Tribunal will consider whether it is reasonable for an employee to claim that they have been harassed in the face of the conduct that they complain of.

Is the employer liable?

Harassment from other employees

Employers are vicariously liable for the actions of their employees. Section 109 of the

Equality Act 2010 states at section 1:

Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer.

In other words, a person harassed by a colleague at work has a claim against their employer as well as against the colleague. The Employer’s knowledge is irrelevant here. There is no need for the company to have encouraged, condoned or even to have been aware of any unwanted conduct.

Employers’ are not liable, however, if they can show that they had taken “all reasonable steps” to prevent the harassment – Equality Act Section 139 (4). All reasonable steps might mean having robust policies in place to prevent harassment which are rigorously enforced and backed up by regular training of all supervisors.

It may not be possible for an employer to avoid liability if they have merely devoted a few pages of a staff handbook to
issues of dignity at work and harassment but done little to make employees aware of their policies. It is a question of fact for the tribunal whether an employer has done enough to avoid liability.

Harassment from Third Parties

Prior to October 2013 employers were also liable for the acts of third parties.

For example if a customer came into the workplace and harassed employees then the employer was obliged to prevent that harassment. The situation since the repeal of laws relating to liability for third party actions is still unclear. In all likelihood, employees could claim that their employer was providing a humiliating, offensive environment for them by allowing them to be harassed. The now repealed law provided that there had to be some awareness of the situation and failure to take action for the employer to be liable.

In the course of employment

Employees are entitled to bring claims against their employers for anything that happened in the course of employment. Case law has built up over time to show that the course of employment need not necessarily be during the working day. Tribunals will consider whether employees were on duty or at the place of work. Things which happen
immediately after work may be considered to be in the course of employment. Corporate events, conferences, after work drinks and office Christmas parties have all been considered to be “in the course of employment” by tribunals.

Case Examples

Sexual Orientation

Biovanas and Ors v Bennett UKEAT/2012/0254 in which a gay man found a note in a file which referred to him taking cases to two colleagues, one of whom the note referred to as his “batty boy mate” (which the tribunal accepted was a pejorative sexual slur originating from a rap song).

Age

Clement v Lloyds Banking Plc EAT 0474 was an age discrimination claim bought on the basis of a single remark to an employee of “you are not 25 anymore”.

Race

Harper v Housing 21 ET/2408839/2012 in which the Claimant, of Irish Nationality was compared to people appearing on My Big Fat Gypsy wedding.

Sex

In Moonsar v Fiveways Express Transport Limited [2004] UKEAT, the Claimant complained about colleagues downloading sexually explicit images whilst she was on evening shift.