harassmentWhat does your staff handbook say?

If you have a dignity at work policy in your staff handbook, it is advisable to include clear examples of what constitutes unwanted conduct. This ensures that it is then clear in everyone’s mind where you draw the line.  (Work Manual from Bizezia has a number of fully editable work policies – look up details at: www.bizezia.com/products/work-manual)

It is important to note that the word unwanted in this context actually appears to mean the same as unwelcome or uninvited.  For the purposes of EqA, unwanted does not mean that express objection must be made to the conduct before it becomes unwanted. Another misconception is that a one-off incident cannot amount to harassment. This is not true. If the act is serious enough it can amount to harassment under the EqA.

Example:

A female car mechanic is told by her boss that her work is not as good as her male colleagues and perhaps she should stay home and cook and clean for her husband. This all happens in front of other male colleagues. This statement could potentially amount to harassment related to sex as it likely to have been unwanted and the female car mechanic would not have to object to it before it was deemed unlawful harassment.

The concept related to a protected characteristic is also important as it has a very broad meaning in that the conduct does not have to be because of the protected characteristic.  Unlike that which a lot of people think, this can include the following situations:

  • Where conduct is related to the worker’s own protected characteristics:

If a worker with HIV is verbally abused because he or she has to take a lot of medication in the workplace, this could amount to harassment related to disability.

The most common form of harassment in the workplace is 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.

Example:

During a meeting attended by both male and female workers, a male manager directs a number of remarks of a sexual nature to the group as a whole.  A female colleague finds the comments offensive and humiliating to her as a woman.  She would be able to make a claim for harassment, even though the remarks were not specifically directed to her.
  • Where there is any connection with a protected characteristic.

Under the EqA, protection is provided because the conduct is dictated by a relevant protected characteristic. It doesn’t matter if the worker has that characteristic themselves. Connection with a protected characteristic may therefore arise in several situations:

  • The worker may be associated with someone who has protected characteristics.

Example:

A worker has a daughter that has converted to Islam.  His work colleagues make offensive remarks to him about his daughter’s new religion.  In this case, the worker could have a claim for harassment related to religion or belief. 
  • The worker may be wrongly perceived as having particular protected characteristics.

Therefore, in the above example, the daughter may not have converted to Islam, but if her father is being subjected to abuse because his colleagues think she has, he could still have a claim for harassment related to religion or belief.

  • The worker is known not to have the protected characteristic but nevertheless is subjected to harassment related to that characteristic.

Example:

If a worker is subjected to homophobic banter and name calling, even though his colleague knows that he is not gay.  Because the form the abuse relates to sexual orientation, this could amount to harassment related to sexual orientation. 
  • The unwanted conduct related to a protected characteristic is not directed at a particular worker, but at another person or no one in particular.

Example:

A manager racially abuses a black worker.  As a result of the racial abuse, the black worker’s white colleague is offended and could bring a claim for racial harassment.
  • The unwanted conduct is related to the protected characteristic, but it does not take place because of the protected characteristic.

Example:

An example of this would be a male worker who has a relationship with his female manager.  When this male worker was seen with another female colleague, the manager suspects that an affair between them exists.  As a result, the manager makes the male worker’s working life difficult by criticising his work and using offensive and abusive language.  The important point here is that the behaviour is not because of the sex of the male worker, but because of the suspected affair which is related to his sex.  This could amount to harassment related to sex.

Sexual Harassment

There is a separate protection against conduct which is of a sexual nature.  This type of harassment does not need in any way to relate to a protected characteristic.

This type of harassment occurs where:

  • The perpetrator engages in conduct of a sexual nature.
  • The conduct has the purpose or effect of:
    –  Violating the victim’s dignity, or
    –  Creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim.

Conduct of a sexual nature can include verbal, non verbal or physical conduct, including unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails of a sexual nature.  Again, if you do have a staff handbook which included a Dignity at Work Policy, it is advisable to clearly state which kind of behaviour is prohibited as they are likely to amount to sexual harassment under the EqA.

Example:

A young lady is at the start of her professional career.  She was encouraged by her employer to attend as many networking events as possible to promote the company, which she did. She was later told at a staff party by a rather inebriated senior manager that ‘the reason why we send you to these networking events is because people want to sleep with you’.  In this case, this young lady had her wits about her and lodged a formal grievance with her employer.  The grievance was taken seriously and complaint was investigated. In the end, the perpetrator formally apologised to the young lady for his lewd and inappropriate comment.

There are a couple of things to learn from the above situation. Firstly, the statement was made at a staff party which, even though it was after working hours, was (for the purposes of the EqA) still in the course of the girl’s employment.  This is also a good example of how sometimes the best way to deal with prohibited conduct is to address them informally and encourage the perpetrator to apologise before you move to a more formal grievance and disciplinary procedure.

With the above example in mind, as for standard harassment, if the purpose of the conduct is to violate the victim’s dignity or create an intimidating, hostile or degrading, humiliating or offensive environment, then the perpetrator may be liable even if it did not have that effect, or at least has not been shown to have that effect.

Conversely, if the effect of the conduct is to violate the victim’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment, then the perpetrator may be liable even if that was not the purpose of the conduct.

In deciding whether conduct has the effect of violating the victim’s dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim, a tribunal must take each of the following into account.

  • The perception of the victim.
  • The other circumstances of the case.
  • Whether it is reasonable for the conduct to have that effect.

Hence, it will be no defence that the perpetrator would have behaved just the same to men, or women or both.  So, in the example above if the senior partner said the exact same thing to a male employee at the staff party it would not have been a defence.

Less favourable treatment for rejecting or submitting unwanted conduct

The third type of harassment occurs when a worker is treated less favourably by the employee because that worker submitted to, or rejected unwanted conduct of a sexual nature, or unwanted conduct of a sexual nature, or unwanted conduct which is related to sex or to gender reassignment, and the unwanted conduct creates an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim.

Example:

A junior staff member rejects the advances of a manager and is then turned down for a promotion which she believes she would have got if she had slept with her boss.  This worker would then have a claim for harassment. 

Under this type of harassment, the initial unwanted conduct may be committed by the person who treats the worker less favourably or by another person.  This means that if she turned down the manager, but then the manager’s best friend who also works at the same company, is treating her less favourably because she had turned down the manager, she could have a claim of harassment over the best friend’s actions.

The Concept of Purpose or Effect

It is very important to note that if the purpose of subjecting the worker to the conduct is to create an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim, this will be sufficient to establish unlawful harassment.  It will not be necessary to inquire into the effect of that conduct on that particular worker.

Regardless of the intended purpose, unwanted conduct will also amount to harassment if it has the effect of creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim.

Go to Part 4 – Unusual Forms of Harassment       ¦       Go back to part 2       ¦       Go back to Part 1

Sofie Lyeklint

Sofie Lyeklint

Sofie has recently joined the firm and heads up the Employment department specialising in all aspects of employment law. She has a particular interest in Tribunals and drafting employment contracts, staff handbooks and settlement agreements. Sofie also works closely with our Commercial Property and Residential Property departments specialising in Collective Enfranchisement, which is flat owners entitlement to collectively purchase their own freehold, the Right to Manage and Lease Extensions. She is committed to reaching the best commercial outcome for our clients.

Sofie speaks fluent Swedish and Chinese and graduated with a Chinese & Politics honours degree from School of Oriental and African Studies in 2005. She then spent a few years living and working in China before returning to the UK to qualify as a solicitor. In her free time she enjoys scuba diving, boxercise, running and travelling.

She can be contacted at +44 (0)1273 204411 or by email to sofie@engleharts.co.uk
Sofie Lyeklint
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