Employment: Harassment

The "Code"
means the 2004 Code of Practice: Employment and Occupation (pdf file on EHRC website).

Section references
are to DDA 1995 as amended, available on the DRC website - 'DDA and related statutes'.

The DDA specifically covers harassment. There are also rights under the Protection from Harassment Act. For guidance generally on what to do if you are being bullied or harassed at work, there is an ACAS Advice leaflet (link to ACAS website).

Under the DDA

What is 'harassment'?

The DDA definition is fairly wide. 'Harassment' is where, for a reason which relates to the disabled person's disability, a person engages in unwanted conduct which has the purpose or effect of
(a) violating the disabled person's dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him
(new section 3B).

"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."
Code of Practice: Employment and Occupation. Para. 4.39

Nothing more is needed if that is the purpose of the conduct.

However if one is relying on the effect of the conduct, it is to be regarded as having that effect only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect. The Employment Appeal Tribunal has said on this, in the context of race discrimination:

"...what the tribunal is required to consider is whether, if the claimant has experienced those feelings or perceptions [i.e. that her dignity has been violated or an adverse environment created], it was reasonable for her to do so. Thus if, for example, the tribunal believes that the claimant was unreasonably prone to take offence, then, even if she did genuinely feel her dignity to have been violated, there will have been no harassment within the meaning of the section... One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt."
(Richmond Pharmacology v Dhaliwal (2009) (link to Word doc on EAT website)).

An employer will often be liable for harassment by an employee's work colleagues, as well as managers. The liability position is similar to that for sexual harassment, which is discussed on this EHRC web page: 'Liability of employers'. For harassment by suppliers or customers, see below Wider protection under EU law?

Code of practice

There is commentary on harassment in the Code of Practice: Employment and Occupation (pdf file on EHRC website) from para 4.38 onward. Para 4.39 has an example of a person who stammers - see box above.

Tribunal case

A claim for harassment/verbal bullying of a person who stammers failed in Alderson v Walkers Snack Foods (2001). This was before the current statutory rules on harassment were introduced. However, the decision was more because the tribunal considered there had been no harassment on the facts.

Wider protection under EU law?

The UK coverage of harassment is 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 for disability did not comply with equivalent wording in an EU directive.

In the light of the High Court decision, likely ways in which protection should be wider in the light of EU law are:

third party harassment: the employer should be liable if he knowingly fails to protect an employee from repetitive harassment by a customer or supplier;
harassment should not have to be 'for a reason' which relates to disability. The harassment need only be 'related to' the disability. What's the difference? Well, say the harassment is because the victim is not within the perpetrator's clique. That might be evidenced by the fact that another person outside the clique who does not have a disability is also being harassed. If the harassment includes comments related to the person's disability, it seems likely contravene the EU directive. This is even though arguably the reason for the harassment - namely being outside the clique - is not related to the disability, so that the harassment may fall outside the UK wording. (These facts are taken from Abbey National v Fairbrother (Word doc on EAT website) [2007], where there was held to be no breach of the DDA as it stood before the current harassment rules were introduced.)
harassment can relate to someone else's disability. The European Court of Justice decided this in Coleman v Attridge Law (July 2008). It seems that the disability need not be that of the person being harassed. Eg harassment could relate to the disability of a friend/colleague, or of one's child. More on harassment because of association...

In the Equality Bill published April 2009, the Government proposes to amend the law to comply with the directive. However, if the employer is in the public sector it may be possible to claim the wider protection already through 'direct effect'. Even for private sector employers, tribunals can sometimes interpret the UK wording in a way that is consistent with the directive. (See Where UK law is inconsistent, what happens?).

The Government is considering changes to the law on harassment.

Protection from Harassment Act 1997

This 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).

The text of the Protection from Harassment Act 1997 is at www.opsi.gov.uk/acts/acts1997/97040--a.htm.

Apart from these rules...

Even before specific harassment rules in the DDA came into effect on 1st October 2004, harassment would almost always have been covered in the DDA simply as 'any other detriment' (para 6.22 of 1996 Code). Under the new rules, 'detriment' excludes harassment (new section 18D(2)), but may perhaps 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.