UK: Harassment - An overview of the employment legislation

Last Updated: 4 May 2010
Article by Nicola McMahon

The problem

Amongst the press coverage of the new airport body scanners were reports that one Heathrow worker had ogled a female employee who accidentally walked through a full-body scanner. The employee in question was issued with a police warning for harassment and subjected to disciplinary action by his employer.

This raises the issue of harassment in the workplace where employers may find themselves liable at civil and criminal law. Harassment can also affect staff morale, lead to an unmotivated workforce and contribute towards high staff turnover.

The law

Employees are protected from "harassment" within the discrimination legislation. This legislation provides that harassment takes place where, on one of the protected grounds (sex or conduct of a sexual nature, race, disability or the disability of another person, religion or belief, sexual orientation, gender reassignment or age) A engages in unwanted conduct which has the purpose or effect of violating B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The unwanted conduct may be a one-off incident or a serious of actions. The requirement that the conduct in question has "the purpose or effect" of harassing the complainant on one of the prohibited grounds of discrimination means that generally, if conduct has the effect of harassing, it is unlawful regardless of whether that is the intention of the individual. As a result, an individual's actions may overstep the mark before they realise, because the legislation does not enable an individual to "test the water". There is however a qualifying provision that action will only have the effect of violating dignity, or creating an intimidating environment if it should "reasonably be considered as having that effect". This therefore excludes liability if the individual is hypersensitive and unreasonably takes offence.

Within the context of the sex discrimination legislation employers may be liable if they unreasonably fail to protect employees from third party harassment, for example by clients or customers if they knew that the employee has been subject to such harassment in the course of their employment on at least two other occasions. It is immaterial whether the third party is the same or a different person on each occasion.

The Protection from Harassment Act 1997 (PHA) may also be relevant. This legislation was initially designed as a measure to tackle stalking, but has since been found by the courts to have wider application, including in the employment context. The definition of harassment in the PHA is an oppressive and unacceptable course of conduct (more than a one off incident) which amounts to harassment of another which is "alarming" or causes "distress" to the individual.

Expert advice

As employers are vicarious liable for the actions of their employees, it is important for employers to take steps to avoid harassment taking place in their workplaces.

Under the discrimination legislation, an employer has a defence to a claim of discrimination or harassment brought on the basis of an act done by an employee if the employer can prove that they took such steps as were "reasonably practicable" to prevent the employee from doing that act.

In assessing whether an employer will be able to rely on the "reasonable steps" defence a tribunal will look at whether the employer took any steps at all, and then having identified the steps consider whether there were any further, reasonably practicable, steps the employer could have taken.

Unfortunately, the PHA does not allow for a "reasonable steps" defence for the employer. The employer may therefore find itself vicariously liable for the actions of its employees, regardless of what steps it took to prevent harassment.

To do checklist

Employers should:

  • Have a harassment policy in place promoting dignity in the workplace and with a no-tolerance approach to harassment;
  • Bring the policy to the attention of all employees;
  • Highlight the consequences of non-compliance to employees including disciplinary action and personal civil and criminal liability;
  • Promptly address complaints of harassment and record all complaints, investigations and actions taken to monitor the effectiveness of the policy. This should clearly overlap with grievance and disciplinary policies and procedures.

Beware!

If an employee is able to prove that they have been harassed at work and their employer is unable to show that they took reasonable steps to prevent harassment taking place, the employer may face a potentially unlimited award in the Employment Tribunal. Employers should also be aware of potential claims brought under the PHA, for which the limitation period in which employees can bring claims is 6 years, rather than the 3 month limitation in the Employment Tribunal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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