Creating a fairer Britain
Harassment at work is sometimes linked to bullying. Bullying behaviour may or may not amount to harassment in equality law.
For behaviour to count as harassment in equality law, it has to be one of three types:
Type 1: Unwanted behaviour related to the protected characteristics listed below
Type 2: Sexual harassment
Type 3: Less favourable treatment because of submission to or rejection of previous sex or gender reassignment harassment.
The first type of harassment is unwanted behaviour related to age, disability, race, sex, gender reassignment, religion or belief or sexual orientation, which has the purpose or effect of:
‘Unwanted behaviour’ can include any kind of behaviour, including spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour.
'Related to' a protected characteristic covers situations:
During a training session attended by male and female workers, a male trainer directs a number of remarks of a sexual nature to the group as a whole. A female worker finds the comments offensive and humiliating to her as a woman. She can claim harassment even though the remarks were not specifically directed at her.
where the worker who is harassed does not have the relevant protected characteristic.
A worker is subjected to homophobic banter and name calling, even though his colleagues know he is not gay. Because the form of the abuse relates to a protected characteristic, ie sexual orientation, this could amount to harassment related to sexual orientation.
The unwanted behaviour does not have to be specifically aimed at the person who finds it violates their dignity or creates for them an intimidating, hostile, degrading, humiliating or offensive environment.
A white worker in an office where most of the other workers are also white finds the habitual racist comments of another member of staff also creates a hostile and intimidating environment for them. This may amount to harassment.
Male members of staff looking at pornography on work computers may create an intimidating or offensive environment for their female colleagues. Even though they do not specifically draw the women’s attention to the pornography or speak about it with them, this could amount to harassment.
It may also be harassment where the unwanted conduct is related to the protected characteristic, but does not takepalce because of the protected characteristic.
A female worker has a relationship with her male manager. On seeing her with another male colleague, the manager suspects she is having an affair. As a result, the manager makes her working life difficult by continually criticising her work in an offensive manner. The behaviour is not because of the sex of the female worker, but because of the suspected affair, which is related to her sex. This could amount to harassment related to sex.
The second type of harassment is sexual harassment.
Sexual harassment takes place when a person does something of a sexual nature (which might be verbal, non-verbal or physical) which has the purpose or effect of:
‘Of a sexual nature’ can include unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.
The third type of harassment is where a worker is treated badly because they either submit to or reject sexual harassment or harassment related to sex or gender reassignment.
A shopkeeper propositions one of his shop assistants, she rejects his advances and is then turned down for promotion which she would have got if she had accepted her boss's advances. This amounts to harassment.
This kind of harassment also applies where the person who treats the worker badly is someone different from the person carrying out the original harassment.
A project manager of Indian ethnic origin has lived in England all her life. After she gives notice that she intends to resign from her job with a company, the Director comments, ‘We will probably bump into each other in future, unless you are married off in India’. This remark is unwanted conduct related to the worker’s ethnic origin which, though unintended, has the effect of violating the worker’s dignity. It is reasonable for the worker to take what was said as a stereotypical view of Indian women and to be offended.
In some situations, a woman may need to make clear that unexceptional behaviour is unwanted, before it can be considered harassment.
A woman is asked for a drink after work on a few occasions by her work colleague. She makes an excuse and says she cannot come. On the third occasion, she explicitly states that she does not want to go for a drink with him at all. Her colleague continues to ask her. His continued invitations after she has stated clearly that she does not want to go out with him may be harassment. On the first few occasions, before this was clear, his invitations are unlikely to be considered harassment.
An employee with a learning disability is teased by colleagues who tell him to go to the stores and ask for non-existent items such as a ‘long weight’ as they think he will fall for the trick. The worker finds it humiliating so is likely to be able to bring a claim for harassment even though his colleagues may not have intended to create a hostile environment for him or undermine his dignity.
As an employer, you can be held responsible for harassment of a worker by someone who doesn’t work for you, such as a customer. This is sometimes called ‘third party harassment’.
You will become legally responsible if they know that their worker has been harassed by someone who does not work for you twice before but fail to take reasonable steps to protect the worker from further harassment.
It does not have to be the same person harassing the worker on each occasion.
An employer is aware that a female bar worker has been sexually harassed on two separate occasions by two different customers. Once the employer has been told or has found out about the first two occasions, they will be liable for a third act of harassment towards the same bar worker, if they fail to take reasonably practicable steps to prevent further harassment. This will be the case even if the third act of harassment is committed by an unconnected customer.
Good practice tip for avoiding being held responsible for third party harassment
Don’t wait for your worker to make two complaints about harassment. Deal with every incident of harassment when it takes place. Steps you could take include:
You can also be held legally responsible for harassment by people who work for you. This applies whether the person who works for you harasses another of your workers or harasses someone like a customer, client or service user who could also bring a claim against you.
So it is important you take all reasonable steps to make sure your workers know that harassment will not be tolerated, both because of the impact it has on the person who is harassed, but also because of the impact it could have on your organisation.
If the person who harasses someone else is your employee, equality law says that you will be held legally responsible unless you can show that you took all reasonable steps to prevent them harassing someone.
If the person who harasses someone else is your agent (someone else who is doing something for you but with whom you don’t have a contract of employment), you will be held legally responsible if they are acting under your authority.
It does not matter if you know or approve about the discriminatory acts of your employees or agents, you could still be liable.
There is more information about when you are legally responsible for what other people do.
Equality law does not specify exactly what ‘reasonable steps’ are, but these steps are likely to help:
Good practice tips for dealing with complaints of harassment
Try to make sure that workers not involved do not find out about what has happened.