Harassment 





Harassment “related to” a protected characteristic is unlawful under the EA 10. The term is often used loosely to describe unpleasant or bullying behaviour, but in the context of discrimination law, it has a specific meaning. As with direct discrimination, the definition is wide enough to cover both associative and perceptive harassment. 





Section 26(1) of the EA 10 defines harassment as unwanted conduct with the purpose or effect of:




• violating the employee’s dignity; or





• creating an intimidating, hostile, degrading, humiliating or offensive environment for that employee.





The unwanted conduct must be related to age, disability, gender reassignment, race, religion or belief, sex or sexual orientation. Marriage and civil partnership, pregnancy and maternity are not included in this list.
 



Harassment can take many forms, for example, abusive language, name-calling, offensive screen savers, jokes, offensive emails, texts, or cruel or offensive postings on social media sites.





There can only be harassment if the individual knows the unwanted conduct is going on. For example, placing someone under covert surveillance was not harassment in Peninsula Business Services v Baker [2017] UKEAT/0241/16/RN, because Mr Baker only found out about it later. (Although not harassment, this kind of behaviour could be victimisation (see page 236) if the reason for placing someone under surveillance is because they tried to assert equality rights.)




Many unions have produced online guides and practical toolkits to help reps tackle workplace harassment. There is also practical guidance in the LRD booklet, Bullying and harassment at work — a guide for trade union reps.




It is up to the target of the harassment to decide whether conduct is offensive. However, that subjective assessment is qualified by section 26(4), EA 10 which states that conduct is not harassment if, taking account of surrounding circumstances, the perpetrator could not reasonably be expected to appreciate that the employee would find it offensive. Here is an example:



“Trivial” allegations are not protected. Context is very important when considering allegations of harassment, especially those based on a single act (GMB v Henderson [2015] UKEAT 0073/14/DM, Bakkali v Greater Manchester Buses (South) Ltd t/a Stage Coach Manchester [2018] UKEAT/0176/17). The deliberate choice of serious statutory language — “intimidating, hostile or humiliating” — is supposed to prevent “minor upsets” being included (Land Registry v Grant [2011] ICR 390). 





However, conduct that may be regarded as inoffensive by most workers is likely to become harassment of a particular worker if it continues after the target has told their harasser that they object (Reed and Bull Information Systems v Stedman [1999] IRLR 299). Raising an early grievance or objection can be sensible, as it helps to show that the conduct is unwanted. 





If several members experience harassment, it is often sensible to consider a collective grievance. In some cases, Acas mediation may also offer a way forward. There is information about mediation on the Acas website. 





The EHRC Code of Practice says that “unwanted” means the same as “unwelcome” or “uninvited”. A serious “one-off” incident can be harassment (Insitu Cleaning v Heads [1995] IRLR 4). 





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





The fact that a harasser does not intend to create a hostile and degrading environment will not stop conduct being harassment if that is its effect on the victim. For example, a group of workers may think they are engaging in harmless, “laddish” behaviour by displaying “page three” pin-ups on the walls, or using crude screensavers, but this can be harassment if that is its effect on the individual forced to work in that environment.
Even so, motive can still be very important. This is because the same remark can have a very different impact if it was innocently, if foolishly, intended, as opposed to when it was deliberately aimed at causing hurt (Richmond Pharmacology v Dhaliwal [2009] IRLR 336). 





It is harder to win a harassment case where there is evidence that the worker voluntarily joined in with the activities. For example, in Evans v Xactly Corporation Limited [2018] UKEATPA/0128/18/LA, the words “fat, ginger pikey” (an abusive term targeting the traveller community, with which the claimant was known to be associated) was not “harassment” because he was clearly not upset at the time and was an active participant in an office environment where offensive language was the norm. 


However, 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, when used by someone else, or in a different way, is “unwanted”. It all depends on the context of each case.





There is no need to have the protected characteristic yourself to bring a claim for harassment under the EA 10. It is enough that the behaviour is “related to” the protected characteristic. For example, it is unlawful race harassment to create a work environment in which workers must endure offensive racial remarks, images or behaviour. It makes no difference that they do not share the racial characteristics of those targeted (Noble v Sidhil Limited [2016] UKEAT/0375/14/DA). 



Similarly, it would be sexual orientation harassment to bully a heterosexual man using homophobic insults, although everyone knows the target of the insults is not gay (English v Thomas Sanderson Ltd [2008] EWCA Civ. 1421). In Otomewo v Carphone Warehouse Ltd [2012] ET/2330554/2011, a claim for sexual orientation harassment succeeded when co-workers sabotaged the mobile phone of a heterosexual manager to post on Facebook, “Finally came out of the closet. I am gay and proud”. 



There can be harassment even though offensive conduct is not because of a protected characteristic, but is simply “related” to it. For example: 





There can be harassment where someone is picked on because they are mistakenly perceived to have a protected characteristic, for example, where a heterosexual man is harassed because he is mistakenly thought to be gay, or a Pakistani man is harassed because he is mistakenly believed to be of Muslim faith.



Employers must investigate every claim of harassment properly as quickly as possible. The employer may need to suspend a co-worker accused of harassment. Any suspension should be on full pay and the alleged harasser is entitled to be treated fairly.


A failure to investigate allegations of harassment or discrimination is not harassment “related to” a protected characteristic unless the decision not to investigate is motivated (consciously or sub-consciously) by a protected characteristic (Unite the Union v Nailard [2018] EWCA Civ 1203).