What is harassment?
Harassment is defined as unwanted conduct that has the purpose or effect of violating the dignity of people in the workplace or of creating an intimidating, hostile, degrading, humiliating or offensive environment.
The 2010 Equality Act protects employees from being harassed by their employer or colleagues and the customers of the organisation.
To be protected under the Equality Act the harassment must be related to one of the following “protected characteristics” - gender reassignment, disability, age, sex (or be of a sexual nature), sexual orientation, race, religion or belief (and in Northern Ireland political opinion) or nationality. Harassment may be an isolated incident or come up again and again.
Taking one of these aspects i.e. sexual harassment, this could be for example where the recipient experiences unwanted behaviour of a sexual nature. It could be ‘jokes’ about their sex life, unwelcome sexual advances (verbal or physical) or even assault.
A key factor in determining whether harassment has occurred is whether the actions or comments are viewed as demeaning and unacceptable to the recipient.
Examples of harassment could include:
- Making offensive or intimidating comments;
- Unreasonable or impossible deadlines or workloads;
- Overbearing supervision or unjust criticism;
- Blocking opportunities or making threats about job security.
This form of harassment is a growing problem in many workplaces, but it is a particular problem for those who work in certain sectors such as education and media.
In 2009, teaching union NASUWT worked with the government to produce specialist guidance: Cyberbullying: Supporting Staff. The guidance defines cyberbullying as “the use of information and communications technology, particularly mobile phones and the internet, deliberately to upset someone else."
Employers whose employees may be at risk of cyberbullying or any other form of harassment from external sources (e.g. customers and suppliers) can support their employees by building in clear instructions within their policy on harassment, on what the employees should do if they receive any unwanted communications.
What can the employer do to help tackle harassment?
We increasingly see that most employers take their responsibility to protect their employees from harassment very seriously. They recognise that it makes good business sense to do so and have a workplace that is free from discrimination.
Having a policy is a good start, which covers what is and is not acceptable along with the protection that will be afforded to employees who experience harassment. The Health & Safety Executive (HSE) website provides a useful resource for employers along with Acas' advice and training resources. Burnetts' Employment Law & HR team can work with businesses to draft tailor made policies and procedures, along with supporting employees and employers who face difficulties in this area.
A clear policy statement provides a good foundation, but it will need to be backed by action and in particular training for all employees particularly those with managerial responsibility. Managers who are under pressure at work can sometimes unconsciously take out their own frustrations or create an unacceptable environment for their staff. The employer is ultimately responsible for acts of harassment carried out by their employees and managers (vicarious liability) but they can reduce the liability by showing they had done all they could to prevent harassment occurring.
There are greater expectations on publicly funded organisations to lead by example in this area. Many will also be required to publish how they intend to tackle discrimination and provide evidence of working towards the objectives set out under the “Public Sector Equality Duty“.
Consequences of harassment
The most obvious consequence of harassment in the workplace is the impact on the employee and their productivity. Harassment in all its forms is destructive and in some cases can have serious detrimental effect on the individual affected by harassment.
Employees who suffer ill-health in connection with their work may be able to sue their employer in the civil courts for a breach of any of the employer's duties. If the employee affected feels unsupported by their employer and the harassment relates to one of the characteristics protected under the Equality Act 2010, they could consider making a claim to an Employment Tribunal for discrimination.
Unlike a claim for unfair dismissal, an employee bringing a claim under the Equality Act 2010 need not have 2 years continuous service in order to make the claim.
Although it is not usually the first option an employee tends to take, they could bring a claim for constructive dismissal. Tribunal awards in discrimination cases are unlimited and in serious cases, employees may be able to make a personal injury claim or a claim under the Protection from Harassment Act 1997.
If you are an employer, taking action to safeguard your employees against harassment is the best way to meet your obligations under employment law and avoid costly legal claims. If you are an employee, the good news is that the law is there to protect you against harassment in the workplace.
For more information on harrasment in the workplace, please contact Julie Davis here.