What is “harassment”?
Harassment is widely defined. It 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.
Where that was the effect but not the purpose of the unwanted action, there may be a defence if the claimant is being oversensitive. However, broadly the defence should not apply if it was reasonable for the claimant to regard the conduct as having that effect: Harassment of employee>Subjective perceptions – being too sensitive?
More generally, the definition of ‘harassment’ is discussed in some detail in the context of employment at Harassment of employees. The definition discussed there also applies to other areas covered by the Equality Act, such as service providers and education.
- Harassment of employees
- Examples on stammering: services and public functions>Rudeness and mockery
- Legislation: s.26 EqA (legislation.gov.uk)
- Codes of Practice and Technical guidance: Employment Code, Chapter 7; Services Code, Chapter 8; Technical guidance on further and higher education, Chapter 8.
B 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 no separate legal claim for harassment. Nowadays the employer would be liable for harassment.
News report: Coffee shop mocks stammer on customer’s cup (January 2017)
Starbucks asks a customer’s name when he or she orders a drink, and writes it on the cup. In this particular case, when the customer stammered on his name the barista allegedly wrote RRR…ichard on the cup. The customer found this extremely offensive and humiliating. He complained on the Starbucks Facebook page. The barista was suspended pending disciplinary action, and Starbucks apologised to the customer.
This is likely to be harassment. More examples, including links to news reports: Examples on stammering: Services and public functions.
Case study: helpline laughing at stammer
A person who stammers rang a public helpline. The lady at the other end laughed at her as she was trying to speak. When the caller said that wasn’t acceptable, the lady replied: “You see, you can talk perfectly well when you want to!” The caller wrote to the helpline who responded excellently. They listened to their tape of the conversation and the lady was taken off the helpline for re-training. They also contacted the British Stammering Association for information to help them build stammering into their general training courses for helpline staff.
This did not go to court, but is likely to be harassment under the Equality Act 2010.
Beyond the Equality Act
Protection from Harassment Act 1997
The Equality Act 2010 makes harassment (as defined in s.26) unlawful only in the areas covered by the Equality Act, for example harassment by employers or service providers. The Protection from Harassment Act 1997 requires the harassment to be more serious, but (as well as covering employment for example) extends to situations not covered by the Equality Act:
If the harassment is sufficiently serious, the PHA 1997 can apply to employment but also beyond, eg harassment at work by customers or suppliers, or harassment completely outside the workplace, such as by a shop or other business, or potentially by anyone else such as a neighbour.
Technical note: Relationship of harassment with direct discrimination and victimisation
If conduct amounts to harassment under s.26, other types of EqA claim for that conduct are sometimes excluded.
This is because s.212 EqA says “detriment” does not include conduct which amounts to harassment. S.212(5) says this does not prevent a person claiming direct discrimination where the EqA disapplies a prohibition on harassment in relation to a specified protected characteristic.
S.212 seems to mean that if it is harassment within s.26, one cannot also claim for victimisation (s.27), since “detriment” is specifically required in order to claim under s.27.
For other types of discrimination, what is important is whether one is claiming on the basis of a “detriment” within (normally) s.39(2) EqA for employment, or s.29(2) EqA for provision of services etc. Those are wide provisions which one must come within as well as having a claim for a particular type of discrimination such as direct discrimination (s.13), or discrimination arising from disability (s.15). The effect of s.212 is not totally clear, but for example it can be argued that a harassment claim would not be precluded by a recruitment claim under s.39(1) EqA, which does not refer to “detriment”.