Harassment
In the context of employment law the word “harassment” has a specific meaning. There are distinct elements of the meaning:-
- Unwanted conduct which has the purpose or effect of;
a. Violating another person’s dignity, or
b. Creating an intimidating, hostile, degrading, humiliating or offensive environment for that other person.
It is clear in the definition that for “the conduct” to amount to harassment it does Not have to be deliberate. If the “effect” of the conduct meets the above definition the conduct will constitute harassment. Therefore a lack of intention to cause humiliation or violation of a person’s dignity does not avoid the liability for harassment.
In addition, harassment can occur if, on the grounds of the complainant’s (i.e. the person making the complaint of harassment) rejection of or submission to the unwanted conduct, the harasser (the aggressor) treats the complainant less favourably than he/she might otherwise do.
Harassment, as described above, constitutes unlawful discrimination when it is on the grounds of:-
a. Sex
b. Race
c. Age
d. Sexual orientation
e. Gender re-assignment
f. Religion or belief, or
g. Disability
An important element of this protection is that there is no need for the victim (complainant) to establish a comparison with treatment given to a person of a different race, sexual orientation, religious belief (as the case may be) to prove their case. The claim of harassment, once the victim has established and convinced the employment tribunal of the facts of the allegation cannot be defeated with a claim of “justification”. Although the employment tribunal has to focus on the victim’s perception of the treatment, just because the victim believes he/she is the victim of harassment does not always mean it was harassment. If the treatment or conduct was genuinely trivial, or has been perceived in a manner that was blown out of all proportion, then the tribunal might dismiss the claim. However, as perceptions are always very subjective it is essential that employers ALWAYS treat an allegation of harassment very seriously. The tribunal will have regard to all the circumstances, not just the perception of the alleged victim.
Like all other types of discrimination claims there are time limits that apply when bringing a claim of unlawful harassment under the anti-discrimination legislation. The limit is usually 3 months from the date of the alleged act of harassment; although tribunals may allow this to be extended if they are persuaded that it is just and equitable to do so.
Sometimes employees may allege that they have been harassed, when in fact the treatment they are complaining about has nothing to do with the grounds that make it “unlawful discrimination” listed earlier. The conduct may amount to bullying, and may in some cases make the employer vulnerable to a claim of constructive dismissal (see link); but unless it is in some way linked to the grounds listed above it will not amount to unlawful discrimination.
There is another way in which an individual may pursue a claim of harassment over a situation at work. The Courts have ruled that employers may be held liable for harassment under the Protection From Harassment Act 1997. Under this legislation the individual complainant must be able to refer to a “course of conduct” that amounts to harassment in order to establish a claim. So, in this way there is a contrast between claims brought under the Anti –discrimination legislation, where even a single act can form the basis of a claim of harassment, and the claims brought the Protection from Harassment Act. Furthermore claims under the Protection from Harassment Act can be brought outside the period of 3 months from the date of the harassment. This type of claim is also different in that it has to be brought in the main court system rather than in the employment tribunal. A consequence is that the successful claimant may recover of legal costs in the employment tribunal is very unusual.
In order to deal with allegations of harassment properly, employers should implement an anti-harassment policy, and make sure that their managers are trained in dealing with such claims and the relevant procedure (link PAYG policy).