What is harassment and is it unlawful?
Harassment can take many different forms and the term is often used hand-in-hand with bullying.
It is behaviour which is inappropriate in some way, such as being humiliating or offensive. It can consist of written or verbal communications, jokes/banter, using photographs or images and may even be physical.
Certain types of harassment are unlawful in an employment context.
However, the term ‘harassment’ has a specific, legal definition under the Equality Act 2010. This means, for the harassment to amount to a form of unlawful discrimination, the behaviour you are experiencing, must fall within this definition. It also must relate to one of the protected characteristics under the Equality Act 2010.
What are the protected characteristics?
Under the Equality Act 2010, the following characteristics are protected:
- gender reassignment;
- marriage and civil partnership;
- pregnancy and maternity;
- race (which includes colour, nationality and ethnic or national origin);
- religion or belief;
- sex; and
- sexual orientation
You do not have to have the particular protected characteristic to feel harassed because of it. For example, you could still feel harassed by a colleague making racist ‘jokes’ even if you are not of the race being targeted.
What amounts to harassment under the Equality Act 2010?
The Equality Act 2010 says that harassment is unwanted conduct that has the purpose or the effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for you.
Taking the above example, if you were also telling racist ‘jokes’ then it will be much harder to establish that you found the conduct of your colleague unwanted.
Where a tribunal finds that the conduct was not intentional, in deciding whether it had the above effect, it will take into account your perception, the other circumstances of the case, and whether it was reasonable for the conduct to have had that effect. This latter requirement means that someone who is unreasonably sensitive, may not succeed in establishing harassment.
Does this cover sexual harassment?
There are separate provisions for sexual harassment. Where someone engages in unwanted conduct of a sexual nature which has the purpose, or effect, of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for you, this will amount to harassment.
In addition, there is added protection where, because you have either rejected or submitted to the conduct, you are then treated less favourably by the harasser than you would have been had you not objected to or submitted to the conduct. Put simply, if you reject your boss’s sexual advances and as a result do not receive a pay rise, this amounts to harassment.
What should I do if I am being harassed?
If you are being harassed, depending on the nature of the behaviour, you might feel able to tell your harasser that you find their behaviour inappropriate and ask them to stop. If you do not feel able to do this or if the behaviour or its impact on you is too serious, you should raise a complaint in accordance with your employer’s harassment policy, if they have one, or raise a grievance (every employer should have a grievance procedure).
Your employer should investigate your complaint. It will always be helpful for an internal investigation, and a tribunal claim, if you can provide as much detail as possible about the behaviour you have experienced or are experiencing. It is often helpful to keep a diary of the conduct so that you have dates and a contemporaneous note of what happened. This note should be as detailed as possible as to what actually took place as well as whether anyone will have, or might have, been a witness.
What will happen to my harasser?
This will depend on the findings of any investigation, assuming your employer investigates. If your complaint is upheld, your employer should invoke its disciplinary procedure in respect of the harasser. If the conduct is serious, your harasser may be dismissed for gross misconduct. If the behaviour does not justify dismissal, they should still receive a disciplinary warning in most circumstances. It will then be for your employer to decide how the relationship should work going forward and whether there needs to be any changes made.
What if I’m not believed?
An employer may find the allegations unfounded for a number of reasons. For instance, it may be one person’s word against another and if the complaint lacks detail, this can make it difficult to uphold.
If the complaint is not upheld, no further action will be taken against your harasser, although your employer may offer mediation to assist with the ongoing working relationship.
Will I be able to bring a tribunal claim?
You can bring a tribunal claim if you have been the victim of harassment, irrespective of any findings by your employer (although the more thorough your employer’s investigation, the harder it may be to succeed if your complaint was not upheld). This should be brought within 3 months of the conduct complained of (subject to the extension of time limits as a result of ACAS Early Conciliation which will need to be initiated). Where conduct has been on-going for a period of time, a tribunal might consider it to be a series of acts all amounting to the same conduct, or it may decide that the earlier behaviour is out of time (if it’s occurred more than 3 months before you started ACAS Early Conciliation). In that situation the tribunal has discretion to extend the time limit.
Who would I bring my claim against?
You should bring your claim against your employer (i.e. the legal entity that employs you, such as the company or partnership) as they are responsible for the actions of their employees (i.e. the harasser), but see below for a defence they might use.
You could also bring a claim against your harasser at the same time (so long as you initiated ACAS Early Conciliation against them).
Bringing a claim against both your employer and the harasser has a few advantages. Being named as a Respondent to a claim will add to pressure on the parties to settle. In addition, if an employer shows that they did what they reasonably could to prevent harassment (which is called a statutory defence), then a tribunal may find they are not liable even if it finds the harassment has occurred. If you have only brought a claim against your employer, you would be left without any compensation.
What compensation might I receive if I have been harassed?
If you are successful with your claim, then the amount of compensation you receive in respect of the harassment will depend on its seriousness and impact on you.
Compensation is awarded for injury to feelings. This is split into 3 broad bands. The lower band is for less serious or one-off cases and ranges from £900 to £9,100. The middle band is for more serious cases and goes up to £27,400. The upper band is for the most serious cases, including lengthy campaigns of harassment and goes up to £45,600.
What if I’m treated unfairly for raising a harassment complaint?
If, by bringing harassment to your employer’s attention or by bringing a claim for harassment, you are subjected to some form of unfair treatment (such as not being promoted, not receiving a bonus or even being dismissed), you would have grounds to claim for victimisation in the employment tribunal. Again, strict time limits will apply.
Being subjected to harassment is an unpleasant and, often, distressing experience.
It is important to keep records of the behaviour and to raise this with your employer, if an informal approach is unsuccessful or inappropriate in the circumstances.
If you would like specialist employment law advice about your situation, please contact us. Or to find out more, visit our discrimination claims page.
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