Harassment claims

Harassment is prohibited in relation to the following protected characteristics:

• Age,
• Disability,
• Gender reassignment,
• Race, colour, nationality
• Religion or belief (or lack of either),
• Sex,
• Sexual orientation.

There is no prohibition on harassment related to pregnancy/maternity or marriage and civil partnership.  Harassing a worker may be direct discrimination on these grounds.

The following situations constitute harassment:

1.    'A' harasses 'B' if
    a.    A engages in unwanted conduct related to a relevant 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.

    Example

• Racist, sexist, homophobic etc  jokes,
• Imitating or making fun of  a person's disability,
• Anti religious comments or jokes about a religion,

2.    A also harasses B if
    a.    A engages in unwanted conduct of a sexual nature, and
    b.    the conduct has the purpose or effect as in 1 (b) above.

    Example

• Sexual jokes,
• Physical contact of a sexual nature,

Notes ((a) and (b) above:

• The harassment must be related to the protected characteristic; harassment by itself is not unlawful;
• The victim does not have to possess the protected characteristic; harassment based on a perception that B is gay, Muslim, etc will be covered;
• B may be harassed even where the harassment is aimed at another work; sexist, racist, homophobic comments made to one worker may be offensive to a worker who is not the target of the comments;
• If the conduct is not intended to harass B (ie has that purpose), the question as to whether it has that effect and account will be taken of:

    a.    the perception of B,
    b.    the other circumstances of the case,
    c.    whether it is reasonable for the conduct to have that effect.

3.    A also harasses B if
    a.    A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,
    b.    The conduct has the purpose or effect referred to in 1(b) above, and
    c.    Because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

    Examples
Third party harassment (s40)

An employer (A) is responsible and liable for harassment by a third party in relation to one of the protected characteristics (not pregnancy/maternity or marriage/civil partnership, where:

1. The third party harasses B in the course of B's employment,
2. A knows that B has been harassed in the course of B's employment on at least 2 other occasions by a third party, whether the same third party or not,
3. A failed to take such steps as would have been reasonably practicable to prevent the third party from harassing B.

Note

• A third party is a person who is not the employer or an employee of the employer; both would be liable separately from this provision,
• The acts of harassment may be during the same day or  separated by days, weeks or months.