Staff Matters

Unwanted conduct or behaviour

This behaviour is related to the protected characteristics under the Equality Act 2010, namely: age; disability; gender reassignment; race; religion or belief; sex; and sexual orientation (note that pregnancy and maternity and marriage and civil partnership are not protected characteristics in relation to harassment), and which has the purpose or effect:

– of creating an intimidating, hostile, degrading, humiliating or offensive environment; or

– of violating the person’s dignity.

“Related to” a protected characteristic includes either:

– situations where the person receiving the unwanted behaviour actually has a protected characteristic; or

– occasions when the person receiving the unwanted behaviour has any connection with a protected characteristic, for example, a person might be perceived incorrectly to have a characteristic or he or she may be associated with a person who has that characteristic (such as a family member).

Unwanted (or unwelcome or uninvited) behaviour can include spoken words, written words, physical gestures, facial expressions, jokes, mimicry, pranks, abuse, imagery, acts affecting a person’s surroundings or other physical behaviour. Examples could be:

– male employees working in a particular office are often looking at pornography on work computers. Female workers find that this creates an offensive working environment. Thus, the female workers are subjected to harassment related to a protected characteristic (sex) even when the unwanted behaviour is not specifically aimed them;

– a white worker works in a factory where most of his fellow workers are also white. However, he finds that the continued racist comments made by another member of staff towards a black worker create an intimidating and hostile working environment for him to work in; or

– an employee is subjected to homophobic “banter”, even though his colleagues know that he is not gay and he is aware that he is not gay – this may amount to harassment.

Sexual harassment

This takes place when a person does something “of a sexual nature” (verbal, non-verbal or physical), which has the effect of:

– violating a person’s dignity; or

– creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

“Of a sexual nature” in this context can include sexual assault, sexual jokes, unwelcome advances, touching, displaying pornography or sending emails of a sexual nature.

Unfavourable treatment

The third type of harassment occurs when a worker (male or female) is treated less favourably than another employee because he or she has either submitted to or rejected sexual harassment, or harassment related to sex or gender reassignment. An example of this could be:

– a female line manager propositions a male member of her team in the office. He rejects her advances, but then finds he has not been considered for a promotion, which he believes he probably would have received had he accepted his manager’s advances. This would almost certainly be considered harassment.

The three strikes rule

In October 2010, the provisions relating to the liability for failing to prevent the repeated sexual harassment of employees “in the course of their employment” by third parties was extended to all the protected characteristics – except pregnancy and maternity and marriage and civil partnership.

This means that an employer will be potentially liable where he or she is aware that:

– one of his or her employees has been harassed for a reason related to one of the protected characteristics on at least two occasions by a third party (and it does not have to be the same third party on each occasion); or

– the employer has not taken reasonably practicable steps to prevent the harassment.

Other points to remember

– The prohibition of discrimination by association or perception applies equally to harassment.

– A person may be harassed for any of the relevant protected characteristics, even if he or she is not the intended target of the harassment.

– A “one-off” incident can still amount to harassment.

– There is no requirement for the victim in a case of harassment to have made the perpetrator aware that the conduct was “unwanted”.

What action should employers take?

Employers should ensure that all staff are aware of changes in the law – particularly, an organisation’s liability for third-party harassment (for example, by putting up notices about unacceptable behaviour). Contractors, suppliers and clients should be left in no doubt that claims of harassment by staff will be treated seriously.