Harassment

Harassment takes place under the EA 10 where, for a reason related to one of the “protected characteristics” listed above, an employer subjects a worker to “unwanted” conduct with the “purpose or effect” of “violating the worker’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment” for him or her. In other words “harassment” is unwanted, upsetting and offensive behaviour relating to one of the characteristics above.

It can include spoken or written words, images, graffiti, posters, pranks, jokes, so-called “cyberbullying”, gestures, facial expressions and mimicry.

The conduct must be “unwanted”, in the sense of “unwelcome or uninvited”. However conduct can still be “unwanted” even if the victim has not expressly communicated to the harasser that they object to the behaviour.

Conduct will not amount to harassment if the perpetrator could not reasonably be expected to realise that an employee would find it offensive. However, once the perpetrator is warned that their behaviour is unwanted, any continuation should be treated as harassment (Reed and Bull Information Systems v Stedman [1999] IRLR 299).

A serious “one-off” incident, for example forwarding a pornographic email, can be harassment (Insitu Cleaning v Heads [1995] IRLR4).

“Trivial” allegations are not protected by the EA 10. For example:

The fact that the harasser does not intend to create a hostile and degrading environment is irrelevant if that is the effect it has on the victim. For example, a group of workers may think they are engaging in harmless, “laddish” behaviour by displaying “pin-ups” on the walls, or using crude screensavers, but this can be harassment if this is its effect on the individual forced to work in that environment.

It is harder to win a harassment case where there is evidence that the worker voluntarily took part in the activities. But just because a worker is prepared to accept a level of banter from one co-worker, it does not prevent them arguing that the same language, used by another employee, is “unwanted”.

It is harassment to “out” a gay worker against his or her wishes, or to refer to somebody’s sexuality in a derogatory or humiliating way (Grant v Land Registry [2011] EWCA Civ 769).

A wide range of conduct can amount to harassment under the EA 10. For example, there can be harassment in any of the following scenarios:

• A worker is badly treated because of their protected characteristic.

Example: A deaf worker is verbally abused for wearing a hearing aid: this is harassment.

• A worker is picked on in a manner that “relates to” the protected characteristic.

Example: A disabled worker is denied a disabled parking space because she complained about an unfavourable performance review: this is harassment.

• Bad behaviour is aimed at a group of workers, but only those with the protected characteristic find it offensive:

Example: When delivering a general talk, a trainer makes offensive comments about Muslims, but only the Muslim workers find them offensive: this is harassment.

• Workers are picked on because they associate with someone who has a protected characteristic:

Example: a female worker is bullied because her son is disabled: this is harassment.

• A person who is mistakenly believed to have the characteristic can be protected from harassment.

Example: a male worker is bullied because the bullies mistakenly think he is gay: this is harassment.

• A person can be protected even if the harasser knows that the target does not have the protected characteristic.

Example: A worker engages in unwanted “teasing” using homophobic language; this is harassment even though the harasser knows that his target is not gay.

• Protection is provided even though the behaviour is not directed at anyone in particular.

Example: A worker has to put up with working in an offensive office climate, with sexual or racist language, posters, screen savers and so on: this can be harassment.

• There can be harassment where a worker has to witness offensive conduct directed at someone who has the “protected characteristic”.

Example: a white worker has to watch a black worker enduring racist bullying: this can be harassment.