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Harassment of employees

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Last updated 13th November 2019.

The Equality Act 2010 specifically covers harassment at work, including by colleagues and managers. However it is now more difficult to claim for harassment by third parties such as customers.

Summary

What is ‘harassment’?

The definition in s.26 Equality Act is 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)

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

Subjective perceptions – being too sensitive?

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.

What if that was not the purpose, but the claimant says it was the effect of the conduct? The employer may argue the claimant is being hypersensitive in viewing the conduct as being degrading etc. Here the employment tribunal will decide whether it was reasonable to regard the conduct as having that effect. This should give the employer protection against a hypersensitive claimant, whilst also protecting a claimant who reasonably regards the conduct as degrading etc. The tribunal must also take into account the claimant’s perception and the other circumstances of the case.

The statutory provision on this is s.26(4) Equality Act 2010 which says that in deciding whether conduct has the relevant 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. The courts have held that under s.26(4) there is no harassment based on the effect of the conduct unless it is reasonable for the conduct to be regarded as having that effect within para (c): Ahmed v Cardinal Hume Academies (bailii.org), EAT, 2019. So s.26(4)(c) is not just one factor to be weighed against others. However as stated in s.26(4), the tribunal must also take into account the claimant’s perception and the other circumstances of the case. The court in Ahmed said s.26(4) Equality Act is not intended to mean anything different from s.3B(2) DDA 1995 which read “Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) … 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.”

“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 is no longer a statutory Code of Practice and related to DDA 1995. However, the position now is likely to be the same.

Conduct “related to” a disability

The harassment needs to “related to” the disability. This reflects wording in the EU Framework Employment Directive with which the UK is required to comply.

Previously the Disability Discrimination Act 1995 s.3B1(1) said the harassment must be “for a reason” which relates to disability. 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 (on bailii.org) [2007]). The 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 perhaps is B 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 should 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 words “related to” are 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). The Equality Act’s use of the term “related to” is designed to reflect that. For example, harassment could relate to the stammer of a friend or colleague, or of one’s child. More on harassment because of association…

It seems 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).

English v Thomas Sanderson Ltd (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 a claim for harassment, the claimant might consider whether as an alternative to claim ‘perceived disability’, and/or that the harassment related to ‘disability’ even though there was none perceived – in addition to arguing that he actually has a disability.

Tribunal cases on harassment about stammering

B v John Edward Crowther Ltd, Employment Tribunal, 2002
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 A 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 my page Who is liable under the Equality Act?

B 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, for example customers and suppliers. However, this was repealed by the Coalition Government.

The position now is more complex. One has to consider whether the harassment or, more often, inaction by the employer in tackling it can fall within various possible types of claim:

  • For inaction by the employer to be harassment contrary to s.26 EqA, the employer needs to have a discriminatory motivation. It is not enough that the harassment by the third party is discriminatory, eg related to disability. Below Employer inaction as ‘harassment’ under s.26 EqA?
  • There may be a claim for indirect discrimination contrary to s.19 EqA even if the employer’s inaction does not have a discriminatory motivation. Though not a binding precedent, an employment tribunal held in one case (on race) that an employer was liable where it failed to ensure that all staff reported each and every incident of racial abuse by patients on an incident reporting form. Below Indirect discrimination.
  • Other types of claim may also apply, for example constructive dismissal if the worker has resigned, or the Protection from Harassment Act 1997 in cases of more serious harassment. Below Other types of claim for third party harassment?

In any event the employee could complain to the employer and potentially raise a grievance internally about the bullying.

Employer inaction as ‘harassment’ under s.26 EqA?

The Court of Appeal held in Unite the Union v Nailard, 2018, that employers’ liability for harassment by third parties (ie not agents of the employer) under s.26 Equality Act is now limited to where the employer has a discriminatory motivation for not taking action against the harassment. The manager’s failure to take action can be ‘unwanted conduct’ within s.26, but the failure is not ‘related to’ disability (or another protected characteristic) unless the manager has a discriminatory motivation. (As to possible types of claim if the employer does not have a discriminatory motivation, see below Indirect discrimination? and Other types of claim for third party harassment?.)

Unite the Union v Nailard, Court of Appeal, 2018
An employee of the union suffered sexual harassment by elected officers who were not employees. She sought to argue – unsuccessfully – that the failure by the union’s managers to act sufficiently firmly and decisively against the harassment, despite her complaints about it, was itself harassment or direct discrimination. (The union just proposed to transfer her elsewhere.)

The harassment by the union officers was related to sex, but the Court of Appeal held this did not mean the managers’ failure take action against it was related to (or because of) sex. The tribunal had to look at the motivation of the managers. The employer, and indeed the individual decision-taker, would be liable for harassment or direct discrimination under the Equality Act if the mental processes of the decision-taker(s) in failing to act were found (with the assistance of the shift in burden of proof if necessary) to have been significantly influenced, consciously or unconsciously, by the relevant protected characteristic.

She also claimed constructive dismissal, having resigned when the employer proposed to transfer her. The employment tribunal upheld this claim and it was not appealed (EAT decision (bailii.org) at para 10). The tribunal found the union’s failure to deal firmly and decisively with the officers concerned was a breach of the implied term of trust and confidence; it said that the decision to transfer her was the “last straw”. Quite apart from the Equality Act, the claimant was therefore entitled to compensation for unfair dismissal.

Note: She succeeded in her claim that the officials were agents of the union so the union was liable for the harassment by them in that way (see Who is liable under the Equality Act?>Agents). However the case is important as regards liability for harassment by third parties such as customers or suppliers who are not agents of the employer.

This Court of Appeal decision is difficult to reconcile with government statements in Parliamentary debates on the Enterprise and Regulatory Reform Bill repealing EqA s.40(2)-(4). 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, then Parliamentary Under Secretary of State for Employment Relations and Postal Affairs, Hansard 16th October 2012 (link to parliament.uk). See also Baroness Stowell, Hansard 14th January 2013, col GC127.

Indirect discrimination?

Even though an employer does not have a discriminatory motivation (as required for s.26 above), an employer may potentially be liable for indirect discrimination under s.19 EqA. In the Bessong decision below, the practice challenged was the employer’s failure to ensure that all staff reported each and every incident of racial abuse by patients on an incident reporting form. The employment tribunal decision that the employer was liable for indirect discrimination was not appealed. Its decision therefore stands, but is not a binding precedent because there was no appeal decision on it.

Bessong v Pennine Care NHS Foundation Trust, EAT, 2019
The claimant was a mental health nurse in a secure residential unit for men sectioned under the Mental Health Act. He was subject to a serious assault by a patient accompanied by racist abuse. This included the patient calling him a “f***ing black”. The employer made a record of the assault, but an incident report form made no mention or the racist element.

The EAT upheld the tribunal decision that the employer was not liable for harassment under s.26 because its inaction was not related to race. As held in Unite v Union v Nailard above, it was not enough that the harassment by the patient related to race.

However the employment tribunal decision that the employer was liable for indirect discrimination was not appealed, and so stands. The discriminatory practice of the employer was failing to ensure that all staff reported each and every incident of racial abuse by patients on an incident reporting form. This failure had led to many black staff seeing it as pointless to report every racist incident, and the incident report system fell into disrepute. The tribunal listed steps which the employer should have taken to reinforce the message to staff that they should do an incident report after every racist incident.

Future cases will need to clarify the position on indirect discrimination in this context.

Other types of claim for third party harassment?

Ways in which an employer might still be liable for harassment of its employees by third parties, such as customers and suppliers, were discussed in the Government’s 2012 consultation document on the repeal: Consultation on employer liability for harassment by third parties (archive on nationalarchives.gov.uk). The EHRC’s response to the consultation outlines why the EHRC believed these alternative types of claim are insufficient: Equality Act 2010 – employer liability for harassment of employees by third parties: Equality and Human Rights Commission position paper, August 2012 (Word doc, edf.org.uk). The possible alternatives include:

Constructive dismissal

If employers fail to comply with their implied contractual duty of trust and confidence, their common law duty of care, or their statutory health and safety obligations, in relation to an employee who has been subjected to third party harassment, this could amount to a breach of contract entitling the employee to resign and claim that he or she was constructively dismissed. The EHRC comments that this requires the employee to resign to bring a claim.

This claim succeeded in Unite v Nailard above. The employer’s failure to deal firmly and decisively with the officers concerned was a breach of the implied term of trust and confidence.

Protection from Harassment Act 1997 (below)

If the harassment is serious enough, the individual doing the harassment, and that person’s employer, may be liable under the PHA (below). So in the case of third party harassment, eg by a customer or supplier, the PHA does not impose any liability on the employer of the person being harassed, but rather on the individual doing the harassment and perhaps that individual’s employer.

Duty of care, breach of contract

Employers are under a common law (ie non-statutory) duty to take reasonable care of the safety of their employees. Also employers are under contractual duties to their employees, including the implied duty of trust and confidence mentioned above. However, as the EHRC comments (see link above), the employee would need to sustain ‘psychological or physical injury’, unless perhaps the employee resigns and claims constructive dismissal (above), whereas the Equality Act provides compensation for injury to feelings which is wider.

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

This was discussed in some detail and rejected by the Court of Appeal in the Unite v Nailard case above, unless the employer/manager has a discriminatory motive. The key point was that the court considered the manager’s failure to take action was not ‘related’ to disability etc unless the manager had a discriminatory motive.

Protection from Harassment Act 1997

The PHA 1997 applies whether or not you have a disability. It 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. “Conduct” includes speech.

The PHA 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 House of Lords decision on bailii.org) [2006].

Two limitations of harassment under the PHA are that:

  • “course of conduct” must involve conduct on at least two occasions; and
  • because it is also a criminal offence, the harassment must be serious enough to be potentially criminal.

On being serious enough, the Court of Appeal has said:

“….it seems to me that, since Majrowski, courts have been enjoined to consider whether the conduct complained of is ‘oppressive and unacceptable’ as opposed to merely unattractive, unreasonable or regrettable. The primary focus is on whether the conduct is oppressive and unacceptable, albeit the court must keep in mind that it 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 three 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).

A claim under the PHA 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 would have to be considered when the time limit runs from.

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

Not limited to employment

Harassment under the PHA is of course not limited to harassment by an employer or by colleagues. Eg it could include:

  • harassment at work by customers or suppliers (above), or
  • harassment completely outside the workplace, eg when one goes into a particular shop if it happens on more than one occasion.

Legislation

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

Apart from the PHA …

Harassment or abuse can sometimes be a criminal offence under other rules – see disability hate crimes (on citizensadvice.org.uk).

What to do about bullying and harassment

Links:

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:

20th anniversary of stammeringlaw, 1999-2019