Understanding Harassment In The Workplace

Under section 26 of The Equality Act 2010 (EqA), harassment in the workplace as a result of a protected characteristic is made unlawful and this important piece of legislation states; 

(1)     A person (A) harasses another (B) if—

(a)     A engages in unwanted conduct related to a relevant protected

characteristic, and

(b)     the conduct has the purpose or effect of—

(i)    violating B’s dignity, or

(ii)   creating an intimidating, hostile, degrading, humiliating or

offensive environment for B.

(2)     A also harasses B if—

(a)     A engages in unwanted conduct of a sexual nature, and

(b)     the conduct has the purpose or effect referred to in subsection (1)(b).

(3)     A also harasses B if—

(a)     A or another person engages in unwanted conduct of a sexual nature or

that is related to gender reassignment or sex,

(b)     the conduct has the purpose or effect referred to in subsection (1)(b),

and

(c)     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.

(4)     In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—

(a)     the perception of B;

(b)     the other circumstances of the case;

(c)     whether it is reasonable for the conduct to have that effect.

The list of protected characteristics mentioned within this piece of legislation can be found under Section 4 of the EqA and are as follows; 

The following characteristics are protected characteristics— 

age;

disability;

gender reassignment;

marriage and civil partnership;

pregnancy and maternity;

race;

religion or belief;

sex;

sexual orientation.

All employees should be aware that harassment can also occur as a result of unwanted conduct that is motivated by a belief that they have a characteristic they do not or because of someone they are associated with. So, if you are harassed because of a gay sibling, for example, you may still be the victim of harassment at work. Also, a protected characteristic can be shared by both parties yet harassment can still take place. For example, if a male employee treats another male employee in a sexually abusive way, this can be unlawful harassment should he not have treated a female colleague in that way. 

What is ‘unwanted conduct’?

When subjected to harassment at work, employees are entitled to take action. However, it can be difficult to establish whether harassment has actually occurred or if the behaviour concerned amounts to something less serious. Determining what qualifies as harassment is not always easy as the same incident can be viewed very differently by the parties involved. Ultimately, what one person considers to be playful and harmless may be considered to be unwelcome and demeaning by another. 

Sometimes, “banter” can even be used as a defence by an employer in harassment claims. Should both parties voluntarily take part in comments back and forth that could be offensive, but neither of them appears to have taken offence, then these comments can be claimed to just be “banter”.  However, this is not always the case and an individual may simply be trying to fit in by laughing off unwanted conduct that is actually fairly serious harassment due to their protected characteristic.

As the EqA states, unwanted conduct is behaviour that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. So, for example, an invitation to dinner may not be harassment, but it may become harassment if persisted in. There are a number of common situations in which harassment can occur in the workplace and unwanted conduct can take many forms. 

The rhetoric of harassment usually involves unsympathetic comments or jokes about an employee’s protected characteristic and these comments are likely to be seen as offensive by the individual on the receiving end of them. Harassment at work can also be less obvious though and treatment such as being deliberately left out of a certain activity can still be considered harassment in the eyes of the law. It is important to note that an individual can be harassed by; a senior, a colleague of the same level or a group of colleagues.

Some of the several different forms of harassment at work include; 

• Sex harassment 
• Race harassment 
• Disability harassment 

Different types of harassment at work 

To provide an insight into how diverse harassment at work can be, below we have explored a couple of different harassment claims; 

In the case of Berrejah v British Midland Airways Ltd, the claimant was awarded £9,500 for injury to feelings after being discriminated against and harassed on the grounds of her religion. When at work, a colleague made fun of the people of Jeddah in the context of their

religious beliefs and imitated the call to prayer as a joke. The claimant, as the only Muslim in the group, was very hurt and felt left out. After her grievance was incorrectly rejected on the basis that the conduct was not motivated by religious discrimination, the claimant started taking medication for depression and to aid sleep. This resulted in the claimant bringing a claim to the Employment Tribunal for racial discrimination. 

This is a clear example of unwanted conduct and specific behaviour that has resulted in harassment at work. However, not all cases are as clear-cut as this and there is not always one specific event that leads to a harassment claim. For example; 

In the case of Reed v Stedman, after a series of sexual remarks, actions and innuendos, the claimant resigned as she found working for her male manager intolerable. Her claim of sex discrimination was upheld, even though no single incident was in itself enough to constitute harassment. In this case, the series of events was looked at as a whole. 

Whilst some of the respondent’s behaviour in this particular case may have been intended as a joke, the Employment Tribunal found that he behaved in an unwelcome sexual manner and the unwanted conduct was harassment. Even though the claimant never confronted the behaviour or made a grievance, as the other claimant did in the previously mentioned case, the Employment Tribunal found that the behaviour was obviously unwanted. Ultimately, showing sexual interest may not, by itself, be unlawful but it can be part of a continuing regime of harassment.

Employment Tribunals are increasingly willing to protect victims’ susceptibilities and those who initiate sexual contact, like the respondent in this case, do so at their or their employer’s risk. Ultimately, each individual defines their own levels of acceptance and it is not necessary to make a public fuss to indicate disapproval. Employment Tribunals are sensitive to the problems victims may face when dealing with harassment at work and therefore, making it clear that conduct is unwelcome does not have to be in the form of making a public fuss or filing a grievance in order to win a claim. 

Speaking to an employment law specialist

There is no denying that employment law is incredibly complex and the EqA can be difficult to understand, however, an employment law specialist can provide you with the expertise you require. Should you be experiencing unwanted behaviour or comments in the workplace, whether these are of a sexual or racial nature, for example, do not hesitate to contact our team of experts here at Nationwide Employment Lawyers. We will gladly discuss your harassment complaints with you in much more detail. 

Where there is harassment that falls into one of the EqA categories, a claim can be taken to an Employment Tribunal. This claim must be made within three months less than one day of the date of the harassment. Should the harassment be part of an ongoing process, the time period is from the most recent date of the unwanted conduct. If you wish to bring a claim to the Employment Tribunal, our specialists can assist you when doing so. We have the experience and knowledge required to support you throughout all legal proceedings. 

At Nationwide Employment Lawyers, we have a superb record in representing our clients and we pride ourselves on providing a seamless and cost-effective service. We represent our clients from beginning to end and we are committed to achieving the best possible result for every case. To get some initial sound advice, feel free to get in touch with us today.