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Employment: Harassment

The Equality Act 2010 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). This page assumes that the particular stammer is a 'disability' within the Equality Act.

Summary

Under Equality Act 2010 (s.26)

What is 'harassment'?

The Equality Act definition is fairly wide. 'Harassment' is where a person (A) engages in unwanted conduct related to a disability and the conduct has the purpose or effect of
(a) violating another person's (B's) dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B

'Unwanted' does not mean express objection must be made. Also a serious one-off incident can amount to harassment. (Employment Code para 7.8)

A example of a tribunal case in which an employer was held liable for abuse and taunting by colleagues as regards a stammer is Browne v John Edward Crowther Ltd (2002). See further below Tribunal cases.

Legislation: s.26 Equality Act 2010 (link to legislation.gov.uk)
Employment Code, Chapter 7

Relevance of subjective perceptions

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.

"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. This Code of Practice (and example) relates to legislation prior to the Equality Act, namely the DDA, where the harassment test was was somewhat different. However, the position now is likely to be the same.

Concern has been raised that the wording in the Equality Act may allow more subjectivity than the previous Disability Discrimination Act (DDA) wording, 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.

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:

English v Thomas Sanderson Ltd (link to bailii.org), [2008], Court of Appeal
The claimant alleged that he had been subjected to banter and innuendo of a homophobic nature. Everyone knew he was not homosexual. The Court of Appeal held this could be harassment.

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

Browne v John Edward Crowther Ltd (2002), Employment Tribunal
A dyehouse worker suffered ongoing abuse from colleagues related to his stammer. They often laughed and pulled faces at him (he sometimes contorted his face trying to get words out). They made grunting sounds when he was in the vicinity. An operative said for example: "why don't you do us all a favour and f**k off you stuttering twat." The tribunal held the employer was liable for discrimination.
At that time there was not a separate claim for harassment. Nowadays the employer would be liable for harassment.

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.

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:

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

Harrassment at an event outside the office can also be unlawful under the Equality Act:

"The phrase 'in the course of employment' has a wide meaning: it includes acts in the workplace and may also extend to circumstances outside such as work-related social functions or business trips abroad. For example, an employer could be liable for an act of discrimination which took place during a social event organised by the employer, such as an after-work drinks party."
Employment Code, para 10.46

Harassment by third parties, such as customers or suppliers

Before 1st October 2013 there was a specific provision covering harassment by third parties. However, is now repealed (below Harassment by third parties: S.40 EqA (repealed from 1st October 2013))

Nevertheless, there are ways in which an employer may still be liable to harassment of its employees by third parties, such as customers and suppliers. These were discussed in the Government's consultation document on the repeal: Consultation on employer liability for harassment by third parties (link to homeoffice.gov.uk).

The possible alternative types of claim are outlined under the next two subheadings:

Harassment by third parties: claim under s.26 definition of 'harassment'?

One possible type of alternative claim, discussed in the consultation document (above), is that an employer's failure to take action against third party harassment may itself be harassment by the employer, within the normal s.26 EqA definition of 'harassment' (above).

The argument could be that the employer's failure to take steps to prevent the third party harassment is unwanted 'conduct' (including omission) creating a an offensive or humiliating environment, and the omission is 'related' to disability. Or an argument could run that the relevant 'conduct' is knowingly putting an employee in a position where they will be harassed.

The consultation document cites previous cases brought on racial harassment (with mixed results), and it comments that the Equality Act definition of harassment is broader than the definition which applied there.

In Parliamentary debates on the Enterprise and Regulatory Reform Bill repealing EqA s.40(2)-(4), Government ministers have said that third party harassment will be covered to an extent by the general definition of harassment. For example:

...Therefore, employers will continue to be liable for harassment of their employees by a third party even once the 'three strikes' provision has gone. That may be the case, for example, when an employer knows that a customer has repeatedly harassed an employee but has not taken reasonable steps to prevent it from happening again. Those protections will remain. ...
Jo Swinson, Hansard 16th October 2012 (link to parliament.uk). See also Baroness Stowell, Hansard 14th January 2013, col GC127.

However, the repeal creates uncertainty which will be need to be clarified by future court decisions. The EHRC commented on the consultation:

If s.40(2)-(4) is repealed we would urge the Government to take steps to make it clear that third party harassment is covered by s.26. This would offer certainty for employers on the extent of their obligations. Failure to provide this clarity would significantly increase the risk of more litigation about when third party harassment is covered by s.26 and whether that definition of harassment provides the degree of protection against harassment in the workplace required by European directives.
Equality and Human Rights Commission in Response to consultation: Equality Act 2010 - employer liability for harassment of employees by third parties (link to EHRC). The Government is not intending to clarify s.26. See below on European Directives.

There is an important additional layer. The EU Framework Employment Directive may require British law to provide a certain level of protection against failure to take action against third party harassment. A case has considered this as regards the very similar definition of harassment in the separate sex discrimination directive:

Equal Opportunities Commission v Secretary of State for Trade and Industry (link to bailii.org) [2007], High Court
The EOC complained about the wording of the harassment provision in the Sex Discrimination Act 1975. Under the wording of the 1975 Act, harassment had to be 'on ground or her sex'. The EOC argued that under the EU directive harassment need only be associated with (or 'related to') sex, not caused by it. Also the harassment need not be directed at the claimant. Further, argued the EOC, the 1975 Act should cover harassment by third parties, or at least failure by the employer to take action against it.

In the end there was little dispute between the government and EOC as to what the effect of the harassment provision should be, in order to be consistent with the directive. The argument was more on whether the wording of the 1975 Act could be left as it was and simply interpreted so as to be consistent with the directive. The court held that the wording of the Act should not be left as it was. The wording should be amended so that harassment need not be 'because of' sex, and (among other things) so as to facilitate claims for an employer's failure to take action against continuing third party harassment, in accordance with the government's then stated position (see next paragraph).

As regards third party harassment (see from para 36 of the judgment), the government at the time accepted it might be the case that an employer could be liable for failing to take action where there is a continuing course of offensive conduct, which the employer knows of but does nothing to safeguard against (see para 37 for full wording). Counsel for the EOC seems to have accepted that this position would arguably comply with the EU directive. However, she argued this position was not consistent with the wording in the Sex Discrimination Act. The court said that that problem could be resolved, like the other points, by amending the wording of the Act so as to clarify that harassment must be associated with (or related to) sex rather than caused by it.

Note: The Equality Act test for harassment reflects the result of this case. The Act says that harassment need only be 'related to' a protected characteristic, such as sex or disability.

Because of the then Government's position, the High Court in that case did not have to actually decide how far the EU directive covers failure to take steps against third party harassment. However, quite apart from what is required by EU law, that case could be used as authority for the interpretation of the EqA under British law - to argue that conduct related to disability creating an offensive etc environment, as prohibited under the wording of the EqA, can include failure to take steps against third party harassment.

Further discussion on this and other possible types of claim under the Equality Act: ERRA repeals s.40(2)-(4) of the Equality Act 2010: Do the general harassment provisions provide adequate protection? (link to blog.rubensteinpublishing.com), 26/6/13.

Harassment by third parties: other types of claim

Other types of claim which may be available for third party harassment, depending on the circumstances of the case (discussed in the consultation document above) are:

The EHRC's response to the government consultation outlines why the EHRC believes these alternative types of claim are insufficient: Response to consultation: Equality Act 2010 - employer liability for harassment of employees by third parties (link to EHRC).

Harassment by third parties: S.40 EqA (repealed from 1st October 2013)

Under s.40(2)-(4) EqA, an employer is liable for a third party harassing an employee in the course of his/her employment if

Blake v Pashun Care Homes Ltd [2011] EqLR 1293, Employment Tribunal.
The claimant was employed as a care worker in a care home. She claimed that she was sexually harassed by a client at the home, and that her employer took no action either to prevent or to minimise the harassment. The tribunal found that her employer was aware of two incidents of third-party sexual harassment, and took the view that the employer should have taken steps either to prevent or to minimise the harassment. Her claim suceeded..

Repeal of s.40 EqA

The repeal was included in the Enterprise and Regulatory Reform Act 2013, and was part of the Red Tape Challenge. See Red Tape Challenge: employment repeals.

Consultation, with Government response: Consultation on employer liability for harassment by third parties (link to homeoffice.gov.uk).

Comment on the repeal: Government wasting its time on discrimination changes (link to thelawyer.com), 23/5/12.

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 also used for workplace situations. 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, if 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 fairly 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).

The Chop the Knot blog at choptheknot.wordpress.com has posts on the 1997 Act and includes a specific page 'Harassment damages' on level of compensation under it. This blog is by Nick Hanning, who represented the successful claimant in the Majrowski case above.

A claim under the 1997 Act must be brought within 6 years. This period (called the 'limitation period') is much longer than the 3 months time limit for a harassment claim under the Equality Act. Where there is a course of conduct involving several incidents, it is not clear when the time limit runs from.

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:

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Last updated 19th July, 2013