Employment: Harassment

Relevance of subjective perceptions

"A man with a stammer feels he is being harassed because his manager makes constant jokes about people with speech impairments. He asks his manager to stop doing this, but the manager says he is being 'oversensitive' as he habitually makes jokes in the office about many different sorts of people. This is likely to amount to harassment because making remarks of this kind should reasonably be considered as having either of the effects mentioned above." 2004 Code of Practice: Employment and Occupation. Para. 4.39 - pre-Equality Act

If the purpose of conduct was to violate the claimant's dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for them, that is sufficient to establish unlawful harassment.

But what if this was not the purpose, but the claimant argues this was the effect of the conduct. S.26(4) Equality Act 2010 says that in deciding whether conduct has that effect, the tribunal must take into account (a) the perception of the claimant, (b) the other circumstances of the case, and (c) whether it is reasonable for the conduct to have that effect. These are discussed in the Employment Code paras 7.17 to 7.19.

Concern has been raised that this new wording in the Equality Act may allow more subjectivity, in the sense of allowing claims by a 'victim' who is hypersensitive. Such a 'victim' might say it was perfectly reasonable for him, because of his hypersensitivity, to consider that there had been harassment. The Solicitor General rejected this in the House of Commons Committee:

"the test has been set out in a case called Driskel v. Peninsula Business Services Ltd. The judgment said that the facts of a case in which harassment is alleged

'may simply disclose hypersensitivity on the part of the applicant to conduct which was reasonably not perceived by the alleged discriminator as being to her detriment... no finding of discrimination can then follow'.

What we have done is replicate the current law. The reassurance is helpful to make it clear that although clause 24(3) says that the perceptions of B, the victim, are an important factor, the question whether it is reasonable to regard something as harassment is not for the victim to decide - it is an objective test."
(col 319-320, Public Bill Cttee, 18th June 2009 (link to UK Parliament website)).

The Employment Code says at para 7.18(c): "A tribunal is unlikely to find unwanted conduct has the effect, for example, of offending a worker if the tribunal considers the worker to be hypersensitive and that another person subjected to the same conduct would not have been offended."

My comment: it might be thought that whether there is a relevant 'effect' on someone is a subjective matter. However the legal test does not seem to be whether there is an effect "on someone" but whether the conduct violates their dignity or creates a particular type of environment for the person. Given that the test focuses on the person's dignity and environment, it leaves significant room for the objective aspects discussed above (as well as the perception of the claimant). However, the separate test of whether the conduct is 'unwanted' is presumably subjective.

Harassment by colleagues - liability of the employer

An employer will often be liable for harassment by an employee's work colleagues, as well as managers. See my page Employment: Who is liable under the Equality Act? and also EHRC guidance: When your employer is responsible for what other people do (link to EHRC website).

An example of a case on stammering in which an employer was held liable for abuse by work colleagues is Browne v John Edward Crowther Ltd (2002).

Harassment by customers, suppliers etc

A change made by s.40 EqA is that employers are now liable for harassment by third parties in some circumstances, e.g. harassment by customers or suppliers.

The liability for third parties only applies if the employer knows that the employee has been harassed in the course of his employment on at least two other occasions by a third party. (It could be a different third party on each occasion).

If the employer has this knowledge, the employer is liable for harassment where a third party harasses an employee in the course of his/her employment and the employer failed to take such steps as would have been reasonably practicable to prevent the third party from doing so. There are examples of steps that might be reasonably practicable at para 10.24 of the Employment Code.

This change may well have been required under European law (see below Changes required by European law).

However, this provision may change. The Government announced in March 2011 that it "will consult to remove the unworkable requirement in the Equality Act for businesses to take reasonable steps to prevent persistent harassment of their staff by third parties as they have no direct control over it, which would save £0.3 million." This is in the Plan for Growth (link to hm-treasury.gov.uk), which is part of the 2011 Budget. The consultation is to start in autumn 2011.

Conduct "related to" a disability

Under Equality Act 2010, harassment need no longer be 'for a reason' which relates to disability, as was previously required by the Disability Discrimination Act. The harassment need only be 'related to' the disability. This reflects wording in the EU Framework Employment Directive with which the UK is required to comply.

What's the difference? Well, say the harassment is because the victim is not within the perpetrator's clique, as evidenced by the fact that a non-disabled person outside the clique is also being harassed. If the harassment includes comments related to the person's disability, this should now count as harassment. This is so even though arguably the reason for the harassment - namely being outside the clique - is not related to the disability. (Facts taken from Abbey National v Fairbrother (Word doc on EAT website) [2007]). Employment Code para 7.10 says:

"Protection from harassment also applies where a person is generally abusive to other workers but, in relation to a particular worker, the form of the unwanted conduct is determined by that worker's protected characteristic."

Another example is perhaps Browne v John Edward Crowther Ltd (2002), decided under much older legal provisions, where abuse was triggered by an underlying workplace dispute but was directed at the person's stammer. Under present law too, there would be harassment in that case even if the stammer were not actually the cause of the harassment.

The Employment Code at para 7.10 gives various other examples of how the term 'related to' is intended to apply.

Harassment related to someone else's disability

Harassment can relate to someone else's disability. The European Court of Justice decided this in Coleman v Attridge Law (July 2008). By using the term 'related to', the new Equality Act wording is designed to reflect that. For example, harassment could relate to the stammer of a friend/colleague, or of one's child. More on harassment because of association...

The harassment need not be directed at the person making the claim. The Employment Code at para 7.10 gives the example of a manager who racially abuses a black worker. The Code says the black worker's white colleague could bring a claim of racial harassment if the white colleague is offended as a result of the racial abuse. By analogy, a worker could claim if offended by abusive remarks made against a colleague who stammers.

Perceived disability or no disability

Harassment can probably 'relate to' disability without there being any actual disability:

• It seems that harassment of someone who is 'perceived' by their employer or work colleagues to have a disability can be illegal even though in fact there is no disability as legally defined (more on 'perceived' disability).
• It seems too that harassment can be related to disability and illegal even if there is no disability actual or perceived (more on no disability, actual or perceived).

On claims for harassment, it may well become (or be) standard to claim 'perceived disability' as an alternative, in addition to arguing that one does actually a disability as legally defined. The possibility should also be borne in mind of an alternative claim that harassment related to 'disability' even though there was not 'perceived' to be a disability.

Tribunal cases

A claim for abuse and taunting in relation to a stammer succeeded in Browne v John Edward Crowther Ltd (2002). This was before the introduction in 2004 of specific rules on harassment, so the claim was considered under the more general discrimination rules. However, the case would clearly have been one of 'harassment' under the present rules.

Also prior to the specific rules on harassment, a claim for harassment/verbal bullying of a person who stammers failed in Alderson v Walkers Snack Foods (2001). On the evidence, the tribunal considered there had been no harassment.

Changes required by European law

The previous UK coverage of harassment by the Disability Discrimination Act was probably too narrow to comply with the EU Framework Employment Directive. In Equal Opportunities Commission v Secretary of State for Trade and Industry (link to bailii.org) [2007] the High Court held that UK wording on sex discrimination similar to that which then applied for disability did not comply with equivalent wording in an EU directive. Also, as mentioned above, the European Court of Justice decided Coleman v Attridge Law (July 2008) that the disability need not be that of the person being harassed.

Protection from Harassment Act 1997

This 1997 Act applies whether or not you have a disability. The Act says that a person must not pursue a course of conduct which amounts to the harassment of another, and which they know or ought to know amounts to such. A 'course of conduct' must involve conduct on at least two occasions. 'Conduct' includes speech.

The Act was originally intended to deter stalkers. However, it is now used in employment situations too. It creates a criminal offence, but the victim can also claim damages in the civil courts for (among other things) any anxiety caused by the harassment, or financial loss resulting from it.

Importantly, the House of Lords has held that a 'blameless' employer can be liable for bullying of one employee by another, so long as the harassment was closely connected with the bully's ordinary work duties. See Law lords give bullied workers wider scope to sue employers (Guardian Unlimited website) and Majrowski v Guy's and St Thomas' NHS Trust (link to HL decision) [2006].

Because harassment under the 1997 Act is also a criminal offence, the courts impose a reasonably high threshold. The conduct complained of must be 'oppressive and unacceptable'; it is not enough that it is merely unattractive, unreasonable, or regrettable. The Court of Appeal has said that the primary focus should be on whether the conduct is 'oppressive and unacceptable', though the court must also keep in mind that the conduct must be of an order which would sustain criminal liability: Veakins v Keir Islington Ltd (link to bailii.org) (2009).

In a 2011 case, Iqbal v Dean Manson, the Court of Appeal held that 3 letters were capable of being a course of conduct within the Act. It was particularly serious that the letters attacked the claimant's professional integrity. See Case Law: Iqbal v Dean Manson, harassment by letter (link to inforrm.wordpress.com).

Iqbal and a further 2011 case are discussed in Legal Q&A: The Protection from Harassment Act 1997 (www.personneltoday.com, 3/1/12).

Legislation: Protection from Harassment Act 1997 (link to legislation.gov.uk)

Apart from these rules...

Even before specific harassment rules in the Disability Discrimination Act 1995 (DDA) came into effect on 1st October 2004, harassment would almost always have been covered in the DDA simply as 'any other detriment' (now EqA s.39(2)(d)). Under current rules, 'detriment' excludes unlawful harassment (EqA s.212(1)). However, 'any other detriment' in s.39(2)(d) may still be relevant for behaviour falling short of 'harrassment' as defined.

Harassment or abuse can sometimes be a criminal offence under other rules - see disability hate crimes.

What to do about bullying and harassment

See the ACAS Advice leaflet - Bullying and harassment at work: guidance for employees (link to ACAS website).

The Employment Code at para 17.92 suggests an employer may wish to introduce a separate policy (as well as its normal disciplinary and grievance procedures) designed specifically to deal with harassment.

From the Employment Code, para 17.92:
An employer has a procedure that allows a grievance relating to harassment to be raised with a designated experienced manager. This avoids the possibility of an allegation of harassment having to be raised with a line manager who may be the perpetrator of the harassment: