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Associative and perceptive harassment
[ch 7: pages 245-246]There can be harassment in a broad range of situations. All that is required is for the harassment to be “related” to a protected characteristic.
There is no need for the victim of harassment to have the characteristic themselves when they are targeted because they associate with someone who does. For example, there can be unlawful harassment where someone is targeted because they have a disabled child (Coleman v Attridge Law [2009] UKEAT0071/09/301). This is often referred to as “associative harassment”.
There can also be harassment if the victim is targeted because they are suspected of being associated with campaigns in support of those with protected characteristics.
There can be harassment where everybody knows that the person does not have the protected characteristic. For example, it would be sexual orientation discrimination to harass a heterosexual man using homophobic insults, although everyone knows the target of the harassment is not gay (English v Thomas Sanderson Ltd [2008] EWCA Civ. 1421).
There can be harassment even though the offensive conduct is not because of a protected characteristic, but is simply “related” to it. For example:
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.
EHRC Code of Practice on Employment
https://www.equalityhumanrights.com/sites/default/files/employercode.pdf
There can be harassment if an individual has to put up with listening to colleagues making offensive remarks about others who have a protected characteristic, even if they do not have the protected characteristic themselves. For example:
Mr Noble worked in a workshop alongside his line manager who persisted in making derogatory remarks about people with various protected characteristics in his presence. Noble lodged a grievance, which was rejected. He issued a tribunal claim for discrimination linked to various protected characteristics. Some of his claims succeeded, but in relation to racially motivated remarks by his manager about people who are not “White British”, the tribunal rejected his claim for racial harassment, on the basis that Noble was himself “White British”. This was a mistake of law, said the EAT, sending the case back to be heard again. There is no need for an individual to share a protected characteristic in order to be able to bring a claim based on harassment under the EA 10.
Noble v Sidhil Limited & Anor [2016] UKEAT/0375/14/DA
There can be harassment where someone is picked on because they are mistakenly believed to have a protected characteristic, for example, where a man is harassed because he is mistakenly thought to be gay. This is often referred to as “perceptive harassment”.