Harassment and victimisation are two very unpleasant aspects of some workplaces; for the victims, life can become so intolerable that they end up leaving their job. It’s not just morally unacceptable but makes bad business sense as well. Results of unchecked harassment can lead to:
- a reduction in staff morale and damage to employee relations;
- increase in absences through stress and other instances of ill-health;
- an erosion of respect for – and authority of – managers and supervisors;
- reduced performance and loss of productivity;
- damage to company reputation if the situation becomes public knowledge;
- tribunal cases which can lead to compensation awards and another source of bad publicity.
Every employer needs to consider ways in which they can prevent this kind of behaviour from happening.
Section 26 of the Equality Act 2010 defines harassment as “unwanted conduct related to a protected characteristic which has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”.
Harassment applies to all protected characteristics apart from pregnancy/maternity and marriage/civil partnership.
Three types of harassment are specifically prohibited:
- harassment related to a ‘relevant protected characteristic’ (Section 26(1)),
- sexual harassment, (Section 26(2)), and
- less favourable treatment of a service user because they submit to or reject sexual harassment related to sex or gender reassignment (Section 26(3)).
When the harassment relates to a protected characteristic, the term ‘relevant’ does not just refer to employees or client with a protected characteristic but also those who have a connection to a protected characteristic.
By ‘connection’ is meant a situation where the employee or client being harassed has an association with someone who has a protected characteristic or where they are perceived wrongly as having a particular protected characteristic.
The provisions of Section 40 of the Equality Act 2010 for third party harassment were repealed by Section 65 of the Enterprise and Regulatory Reform Act 2013. Therefore, it’s not currently possible for an employer to be held legally responsible for third party harassment.
Victimisation broadly refers to bad treatment which has the effect of putting a person at a disadvantage or making their position worse. This is known in legal terminology as a detriment and when part of victimisation, is directed towards a person by an employer because they have carried out what is known as a ‘protected act’. This is defined as any of the following:
- bringing proceedings under the Equality Act
- giving evidence or information in proceedings brought under the Act;
- doing anything which is related to the provisions of the Act;
- alleging that another person has done something in breach of the Act.
Such acts include, but aren’t limited to, bringing an employment tribunal claim and giving evidence in support of someone who has made such a claim.
The legal definition of victimisation includes situations where an individual has not yet made a complaint but is nevertheless subject to behaviour that would count as victimisation because it is suspected that they might consider making one.
The victim doesn’t need to have a protected characteristic in order to be protected from victimisation under the Act; for example, they could have been supporting a person with a protected characteristic who is making a claim. Claims for victimisation can only be brought by individuals and not groups.
Employers should bear in mind that all employees are free to raise grievances, make claims to employment tribunals or act in support of other employees who are doing so. They should be treated with the same respect and dignity as any other employee, in order to avoid accusations of victimisation.
If an individual gives false evidence or makes an allegation in bad faith, then they are not protected from victimisation under the Equality Act 2010.
What should employers do about harassment?
A workplace policy is a good first move. This does not have to be complicated, particularly if the company is a small one, and it can be included in the other HR policies.
A checklist will probably include many, if not all, of the following points:
- A statement of commitment signed by senior management
- An organisational statement, including information about the definition of harassment and victimisation and what is acceptable/unacceptable in the work environment
- An outline of the grievance procedures and an indication of how long a grievance will take to be resolved
- A statement that harassment and victimisation may be treated as disciplinary offences
- What measures the organisation intends to take to stop harassment and victimisation from happening
- The responsibilities of supervisors and managers
- An assurance that any complaint will be handled confidentially
- The plans for implementation, review and monitoring of the policy.
The policy should also make clear that the organisation will not tolerate harassment of staff by visitors or contractors.
Employees should be made aware of the avenues that are open to them if they experience harassment or victimisation.
Managers should be trained in all aspects of the organisation’s harassment and victimisation policies.
Complaints of harassment and victimisation should be dealt with promptly and fairly. If there are no procedures for dealing with them, measures should be implemented.