3. Harassment

Harassment at work is a complex and difficult issue that many union reps will have to deal with. The most common from of harassment is where a junior worker is harassed by a more senior one. But reps may also be faced with cases of harassment by colleagues at the same grade. These types of cases can be particularly difficult to deal with, especially where both the harasser and the harassed are union members.

Most unions will have a policy for dealing with harassment and reps should inform themselves of what it is. The case of FBU v Frazer [1998] IRLR 697 makes it clear that a union can lawfully refuse legal representation and assistance in a disciplinary hearing to a member accused of sexual harassment, without being in breach of discrimination law.

Most workplace disciplinary and grievance procedures make it clear that harassment is a disciplinary offence. Some workplaces have separate procedures for dealing with harassment, and this is recommended by the Equality and Human Rights Commission (EHRC).

Defining harassment

Section 26(1) of the Equality Act 2010 (EA 10) defines harassment as unwanted conduct, which has the purpose or effect of:

• violating the employee’s dignity; or

• creating an intimidating, hostile, degrading, humiliating or offensive environment for that employee; provided that it could reasonably be considered to have that effect.

Section 26 of the EA 10 makes it clear that, provided that conduct is unwanted and violates the employee’s dignity (as that employee sees it), it is unlawful, unless it would not reasonably be assumed that an employee could be offended by the action complained of. This means that the test is not entirely dependent on how the individual experiencing the harassment sees it, and how a “reasonable” person would view it is relevant. Even aside from the legislative position, courts have held for some time that harassment has to be seen from the point of view of the person being harassed as indicated in the following example:

There may be cases where there has been a period without harassment after an employee’s complaint and then one single act of harassment as in the following case:

In most cases the harassment will continue over a period of time before eventually the person experiencing it can no longer put up with it and complains. But even single acts of harassment can be caught by the legislation. It is no defence to say that something was just a “one off” event. A single act of verbal, racial harassment can be enough to establish a complaint. In the case of Insitu Cleaning v Heads [1995] IRLR 4, a single offensive comment to an employee, by the son of one of the senior managers, was sufficiently serious to amount to sexual harassment.

However, for discrimination law purposes, it is necessary to differentiate between harassment and generally abusive behaviour, as only the former comes within the definition (although bullying and abusive behaviour may amount to a breach of contract). A racist remark that is not directly targeted at an individual may or may not amount to harassment, the issue is whether the employee making the complaint has evidence to show that she had been upset by the remark at the time (Thomas and Comsoft v Robinson [2003] IRLR 7).

Under section 26(2) of the EA 10, sexual harassment is also expressly outlawed. Specifically, conduct of a sexual nature that meets the definition of harassment under section 26(1) of the EA 10 will be unlawful — that is having the effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

The conduct complained of may be actionable even though it is not because of a protected characteristic, but is simply related to a protected characteristic. The following example is taken from the Equality and Human Rights Commission’s draft Code of Practice on Employment (EHRC Code):

Also, under section 26(3)(c) of the EA 10, unlawful harassment occurs where an individual in response to harassment either rejects or submits to the conduct and suffers further harassment (i.e. the behaviour defined under section 26(1) of the EA 10):

It will be harder to win a harassment case where there is evidence pointing to the employee having voluntarily taken part in activities that could be described as harassment. In one case (Jones v ICS Cleaning Services EAT/811/99), this was enough to defeat the claim. However, because an individual is prepared to accept a level of banter from one person, it does not mean that they cannot claim harassment because the same banter from another employee is unwanted.

Most cases of harassment are dealt with using discrimination law, but there are circumstances where it may be possible to use other legal avenues, for example, breach of contract as in the following case:

For useful information on drawing up policies with employers, see the Equality and Human Rights Commission’s draft Code of Practice.

Employer liability for harassment

An employer is liable for harassment that occurs at work if no steps were taken to prevent it, or no action was taken once it was brought to the employer’s attention. It is no defence for employers simply to suggest that they are not liable because they had not condoned or authorised the action complained of. The leading case on this issue is that of Jones v Tower Boot [1997] IRLR 168:

Employers can also be challenged for having failed in their duty of care to the employee if harassment occurs at work. Every employer has an implied duty of care for their employees’ health and welfare, and failing to provide a workplace free from harassment is a clear breach of that duty. In the case of Canniffe v East Riding of Yorkshire Council [2000] IRLR 555, the EAT held that Denise Canniffe did have a valid claim against her employers. She had brought the harassment to their attention and, although some steps had been taken, they were insufficient. It was the duty of the employer to see whether there were any further steps they could reasonably have taken, even if the harassment might still have occurred had they taken them.

Normally an employer will not be liable for harassment which takes place outside work, for example, in the employee’s home or outside working hours. However, where the harasser is also an employee and, for example, the employer fails to investigate the complaint or delays the investigation, there may be grounds for taking a claim against the employer. The case of Coyne v the Home Office [2000] IRLR 838, makes it clear that in cases where harassment is alleged the employer has a responsibility to employees to deal with the complaint, even where the circumstances mean that they would not be responsible for the harassment itself.

Third party harassment

This is where a third party (such as a customer of, or a supplier to the employer) harasses an employee: section 40 of the Equality Act 2010. Employees will have a claim against their employer where the harassment occurs on three occasions, and where the employer — having been made aware that the harassment has occurred — fails to take reasonable steps, such as barring the harasser from the employer’s premises, to prevent a recurrence.

Prior to the implementation of the Equality Act 2010, it was only third party harassment on the grounds of sex that was unlawful. However, since 1 October 2010, harassment on the grounds of age, disability, gender reassignment, race, religion/belief and sexual orientation has been unlawful.

What to do if a member is being harassed

Whenever there is a claim of harassment, it is the duty of the employer to properly investigate the claim as quickly as possible. It is also important to protect the individual making the claim against further harassment during the period of the investigation.

Often it may be necessary to suspend a co-worker accused of harassment — depending on what any contractual disciplinary or harassment procedure states. Automatically suspending someone is probably unlawful.

In the case of Gogay v Hertfordshire CC [2000] IRLR 703, Julie Gogay successfully claimed that her suspension was a breach of mutual trust and confidence. She had been suspended over what turned out to be a completely unsubstantiated allegation of abuse and suffered clinical depression as a result. She successfully sued her employers for breach of their duty of care.

The decision in Mezey v SW London and St George’s Mental Health NHS Trust [2007] EWCA Civ 106 confirms this. Specifically, even where the contract permits it, there is stigma attached to being on suspension and therefore suspending someone cannot be considered “a neutral act”.

Other legislation

Harassment at work can also be dealt with under the Protection from Harassment Act 1997. This Act was initiated in an attempt to curb stalking, but the House of Lords (now Supreme Court) has held that it can apply to employment situations (Majrowski v Guy’s & St Thomas’ NHS Trust [2006] UKHL 34)).

In practice, the Act is more likely to be used in serious cases of bullying and harassment which are not protected by any of the discrimination laws — this is because there are few legal remedies in those cases. For example, where the contractual status of a worker is unclear —whether they are self-employed or a worker or employee — it might be appropriate to use the Act, since it does not depend on there being a contractual relationship of employment. Clearly representatives will need sound legal advice before considering pursuing cases under the 1997 Act.

To succeed, the employee must show that there was a course of oppressive conduct directed at them, which was deliberately intended to cause alarm or distress.

In Conn v Council of City of Sunderland [2007] EWCA Civ 1492, an employee refused to inform on colleagues whom the manager suspected of finishing work early. In response, the manager behaved aggressively and on one occasion threatened violence. The Court of Appeal noted that if the Protection from Harassment Act 1997 were to be activated, the acts complained of would need to be considered sufficiently serious as to warrant a criminal sanction. The Court of Appeal decided that while the acts complained of in this case were unattractive they did not cross the boundary into being oppressive as multiple acts were needed for this definition to apply.