Avoiding and dealing with harassment
What is harassment?
Harassment at work is sometimes linked to bullying. Bullying behaviour may or may not amount to harassment in equality law.
For behaviour to count as harassment in equality law, it has to be one of three types:
The first type of harassment is unwanted behaviour related to age, disability, race, sex, gender reassignment, religion or belief or sexual orientation, which has the purpose or effect of:
- violating a person’s dignity, or
- creating for that person an intimidating, hostile, degrading, humiliating or offensive environment.
‘Unwanted behaviour’ can include any kind of behaviour, including spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour.
'Related to' a protected characteristic covers situations:
- where the harassment is related to the worker's own protected characteristic, or
- where a person is abusive to other workers generally, but a particular worker feels harassed because they have a a protected characteristic.
During a training session attended by male and female workers, a male trainer directs a number of remarks of a sexual nature to the group as a whole. A female worker finds the comments offensive and humiliating to her as a woman. She can claim harassment even though the remarks were not specifically directed at her.
where the worker who is harassed does not have the relevant protected characteristic.
- A worker might be incorrectly perceived to have a characteristic or they may be associated with a person who has a characteristic, such as a family member.
- A worker is known not to have the protected characteristic, but nevertheless is subjected to harassment related to that characteristic.
A worker is subjected to homophobic banter and name calling, even though his colleagues know he is not gay. Because the form of the abuse relates to a protected characteristic, ie sexual orientation, this could amount to harassment related to sexual orientation.
The unwanted behaviour does not have to be specifically aimed at the person who finds it violates their dignity or creates for them an intimidating, hostile, degrading, humiliating or offensive environment.
A white worker in an office where most of the other workers are also white finds the habitual racist comments of another member of staff also creates a hostile and intimidating environment for them. This may amount to harassment.
Male members of staff looking at pornography on work computers may create an intimidating or offensive environment for their female colleagues. Even though they do not specifically draw the women’s attention to the pornography or speak about it with them, this could amount to harassment.
It may also be harassment where the unwanted conduct is related to the protected characteristic, but does not takepalce because of the protected characteristic.
A female worker has a relationship with her male manager. On seeing her with another male colleague, the manager suspects she is having an affair. As a result, the manager makes her working life difficult by continually criticising her work in an offensive manner. The behaviour is not because of the sex of the female worker, but because of the suspected affair, which is related to her sex. This could amount to harassment related to sex.
The second type of harassment is sexual harassment.
Sexual harassment takes place when a person does something of a sexual nature (which might be verbal, non-verbal or physical) which has the purpose or effect of:
- violating a person’s dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
‘Of a sexual nature’ can include unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.
The third type of harassment is where a worker is treated badly because they either submit to or reject sexual harassment or harassment related to sex or gender reassignment.
A shopkeeper propositions one of his shop assistants, she rejects his advances and is then turned down for promotion which she would have got if she had accepted her boss's advances. This amounts to harassment.
This kind of harassment also applies where the person who treats the worker badly is someone different from the person carrying out the original harassment.
Other things to remember about all the types of harassment:
- The word ‘unwanted’ means 'unwelcome' or 'uninvited'. This does not mean that express objection must be made to the conduct before it is considered unwanted. A worker does not need to make it clear in advance that offensive or stereotyped remarks are unwanted.
A project manager of Indian ethnic origin has lived in England all her life. After she gives notice that she intends to resign from her job with a company, the Director comments, ‘We will probably bump into each other in future, unless you are married off in India’. This remark is unwanted conduct related to the worker’s ethnic origin which, though unintended, has the effect of violating the worker’s dignity. It is reasonable for the worker to take what was said as a stereotypical view of Indian women and to be offended.
In some situations, a woman may need to make clear that unexceptional behaviour is unwanted, before it can be considered harassment.
A woman is asked for a drink after work on a few occasions by her work colleague. She makes an excuse and says she cannot come. On the third occasion, she explicitly states that she does not want to go for a drink with him at all. Her colleague continues to ask her. His continued invitations after she has stated clearly that she does not want to go out with him may be harassment. On the first few occasions, before this was clear, his invitations are unlikely to be considered harassment.
- A serious one-off incident may also amount to harassment.
- If the person carrying out the unwanted behaviour actually intends to violate the other person’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for them, this will of itself amount to harassment and you will not have to consider the effect on the individual.
- If the person carrying out the unwanted behaviour does not intend to violate someone’s dignity or create a hostile environment and so on, the behaviour will amount to harassment if it has the effect of creating such an environment and it is reasonable to consider that the behaviour would have that effect.
An employee with a learning disability is teased by colleagues who tell him to go to the stores and ask for non-existent items such as a ‘long weight’ as they think he will fall for the trick. The worker finds it humiliating so is likely to be able to bring a claim for harassment even though his colleagues may not have intended to create a hostile environment for him or undermine his dignity.
As an employer, you can be held responsible for harassment of a worker by someone who doesn’t work for you, such as a customer. This is sometimes called ‘third party harassment’.
You will become legally responsible if they know that their worker has been harassed by someone who does not work for you twice before but fail to take reasonable steps to protect the worker from further harassment.
It does not have to be the same person harassing the worker on each occasion.
An employer is aware that a female bar worker has been sexually harassed on two separate occasions by two different customers. Once the employer has been told or has found out about the first two occasions, they will be liable for a third act of harassment towards the same bar worker, if they fail to take reasonably practicable steps to prevent further harassment. This will be the case even if the third act of harassment is committed by an unconnected customer.
Good practice tip for avoiding being held responsible for third party harassment
Don’t wait for your worker to make two complaints about harassment. Deal with every incident of harassment when it takes place. Steps you could take include:
- making sure that any visitors, clients, suppliers or customers who come into contact with your workers or job applicants are also aware of the harassment policy and behave in line with it, for example, using signs in your reception area about acceptable and unacceptable behaviour
- speaking to the person who has harassed your worker to tell them their behaviour was not acceptable. In some cases, it may be appropriate to stop the person visiting your premises to make sure your staff are protected
- including a term in all contracts with third parties notifying them of your policy on harassment and requiring them to adhere to it
- encouraging workers to report any acts of harassment by third parties and taking action on every reported complaint
- putting notification of unacceptable behaviour on your website, on computer ‘ pop up’ messages, on any plasma screens in your workplace
- including information regarding protection from third party harassment and the complaints procedure in your induction training for new staff, in any staff handbook or information available to service users
- including information on protection from third party harassment in any training for your key stakeholders
- amending your harassment policies to notify staff of the protection from third party harassment and what forms it could take
- speaking to frontline staff, particularly those most at risk such as reception, to check that the protection and complaints procedure is known and whether they have any ideas about how to improve awareness of the policy.
You can also be held legally responsible for harassment by people who work for you. This applies whether the person who works for you harasses another of your workers or harasses someone like a customer, client or service user who could also bring a claim against you.
So it is important you take all reasonable steps to make sure your workers know that harassment will not be tolerated, both because of the impact it has on the person who is harassed, but also because of the impact it could have on your organisation.
If the person who harasses someone else is your employee, equality law says that you will be held legally responsible unless you can show that you took all reasonable steps to prevent them harassing someone.
If the person who harasses someone else is your agent (someone else who is doing something for you but with whom you don’t have a contract of employment), you will be held legally responsible if they are acting under your authority.
It does not matter if you know or approve about the discriminatory acts of your employees or agents, you could still be liable.
There is more information about when you are legally responsible for what other people do.
Equality law does not specify exactly what ‘reasonable steps’ are, but these steps are likely to help:
- Put in place a harassment policy (sometimes this will be included in a wider equality policy).
- Involve staff in the policy-making process, including agreeing the policy with a trade union and/or other worker representatives if appropriate.
- Make sure your workers are aware of the policy’s existence and of their responsibilities to make it work, for example, by providing them with training.
- Make sure that any visitors, clients, suppliers or customers who come into contact with your workers or job applicants are also aware of the policy and behave in line with it, for example, using signs in your reception area.
- Use your policy to explain the steps you are taking to prevent harassment.
- What a harassment policy should do:
- Describe the protected characteristics and clearly state that any harassment of workers or job applicants related to any of these characteristics will not be tolerated.
- Make it clear that harassment will be treated as a disciplinary offence.
- Clearly explain how a worker can make a complaint, informally and formally.
- Make it clear that complaints of harassment will be dealt with within a reasonable time, treated seriously and confidentially, and that someone complaining will be protected from victimisation.
- Describe what support is available to a worker if they think they are being harassed, for example, counselling or a worker assistance programme.
- Describe any training/other resources available for workers to help them spot and stop harassment.
- Describe how your policy will be implemented, reviewed and monitored.
- Build in a review process; this is particularly important if someone has complained of harassment, as you will need to make sure that your policy was effective in dealing with the incident.
Good practice tips for dealing with complaints of harassment
- Handle a complaint of harassment with sensitivity and with respect for everyone’s rights.
- Do not dismiss what is said to have happened as the person complaining being ‘oversensitive’ without investigating exactly what has gone on and assessing whether it comes within the equality law definition of harassment.
- Try not to require someone complaining of harassment to repeatedly recount the events complained of where this is unnecessary, as this may be difficult and upsetting for them.
- If the worker who says they have been harassed wants to make an anonymous complaint (so that the person they are complaining about will not know who has complained) then:
- Try to maintain their confidentiality while you find out what has happened and during any formal disciplinary proceedings you decide are necessary.
- Remember though that the person who is said to have harassed the worker is entitled to know the details of what they are said to have done so they can defend themselves.
Try to make sure that workers not involved do not find out about what has happened.
Last Updated: 17 Apr 2014