S.26 of Equality Act states:
‘A person (A) harasses another if:
(a) A Engages in unwanted conduct related to a relevant protected characteristic; and
(b) The conduct has the purpose or effect of
i. Violating B’s dignity; or
ii. Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Types of Harassment
· General Harassment: ‘A’ engages in unwanted conduct in relation to a protected characteristic, that has the purpose/effect of violating B’s dignity or creating a hostile, degrading, humiliating or offensive environment for B. Does not apply to pregnancy and maternity or marriage and civil partnership.
· Sexual Harassment: A engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the aforementioned effect.
· Rejection of Conduct of a Sexual Nature: Because of B’s rejection or submission to conduct (whether it is A’s or not) related to sex or gender reassignment A treats B less favourably than if B had not rejected/submitted to the conduct.
Unlawful harassment can occur even if the harasser has no idea that the conduct in question is having the effect of violating dignity or creating an intimidating environment.
You must also look at if:
· The conduct has the concerned effect.
· B’s perception of the conduct.
· Other circumstances of the case.
· Is it reasonable for the conduct to have the concerned effect.
There are two strands to violating B’s dignity. Creating an intimidating environment is either:
· The purpose of the conduct. OR
· The effect of the conduct.
It is easier to prove effect rather than purpose; so most claims are based on this strand. Claimants can bring a case on conduct that they didn’t complain of at the time, and may have joined in on at the time because they feared worse treatment or losing their job.
Jenkins v Legoland Windsor Park: Claim based on effect of harassment, based on disability.
Ministry of Defence v Fletcher: Harassment based on sexuality.
Organisations can be found responsible for their staff’s actions, as demonstrated in the Petrina Taylor case., where harassment occurs in the work place.
There is also associative harassment and perceptive harassment.
Third Party Harassment
If an employee is harassed by a customer or client and the employer does nothing when informed, then the employer is liable for third party harassment.
Employers must consider if the employee has taken offence reasonably; if the words/actions could reasonable be considered offensive.
The government are looking to abolish third party harassment.
Harassment now has a wide definition and covers purpose and effect. The law prohibits treatment that is not traditionally considered discrimination e.g. nicknames.