As promised in Issue 35 of the Bottom Line Express, the Masterclass in this Issue takes a look at harassment and third party harassment under the Equality Act 2010. These provisions are expected to come into force on 1st October 2010.
Current anti-discrimination legislation contains free-standing definitions of harassment in the employment context covering all grounds except marriage and civil partnership, pregnancy and maternity, and colour and nationality under the Race Relations Act.
The Equality Act will extend protection from harassment in the employment field to colour and nationality, but not to marriage and civil partnership, or pregnancy and maternity.
Under the Act, harassment is defined as unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. The Act also prohibits sexual harassment and less favourable treatment of an employee because he or she submits to or rejects sexual harassment or harassment related to sex or gender reassignment.
The same wide approach that was adopted for direct discrimination (see article in Issue 34) has also been adopted with regard to harassment, so that the victims of harassment do not have to possess the ‘protected characteristic’ themselves. Consequently, the Act prohibits harassment based on association and perception, and employees will be able to complain of behaviour that they find offensive even if it is not directed at them.
Jason is frequently teased and humiliated about his disability by his line manager. Steve shares an office with Jason. Steve could claim harassment, even though he is not disabled, because the manager’s behaviour has also created an offensive environment for him.
The Act also closes a potential loophole. Current legislation generally prohibits harassment on grounds of a particular characteristic, wording that could be regarded as implying a motivation in the mind of the alleged harasser – the characteristic must have been the reason why the harasser acted as they did. In some cases, this wording was relied on to argue that a person who used racist or homophobic language towards another was not necessarily motivated by race or sexual orientation, and that the language used was simply a ‘vehicle’ for general bullying. The new definition of harassment as conduct ‘related to’ a relevant protected characteristic, should mean that such arguments will prove futile.
Julian is not very popular and is continually being called gay and other related names by some of his workmates. Homophobic comments have been left on his locker. Although Julian is actually heterosexual and everyone concerned knows he isn’t gay, he would still be able to claim harassment related to sexual orientation.
THIRD PARTY HARASSMENT
Since April 2008, the Sex Discrimination Act has protected employees whose employer knowingly fails to protect them from repeated harassment by a third party, such as a customer or a supplier. Express protection against third party harassment does not currently exist in other equality legislation. However, employers who know that an employee is being subjected to third party harassment and fail to take reasonable steps to prevent it, could be in breach of the implied duty of trust and confidence and at risk of constructive dismissal claims.
The Equality Act will extend the liability of employers for persistent harassment of their employees by third parties to all the protected characteristics covered by the harassment provisions (age, disability, gender reassignment, race, religion or belief and sexual orientation).
The employer will be liable if a third party harasses an employee in the course of the latter’s employment; the employer knows that the employee has been harassed in the course of employment on at least two other occasions by a third party (whether or not by the same person); and the employer has not taken reasonable steps to prevent it from happening again. “In the course of employment” includes client meetings, networking events and dealings with external suppliers.
Chris manages a supermarket. One of his employees, Frank, has a learning disability. Frank tells Chris that he is unhappy after a shopper called him offensive names. Chris is concerned and monitors the situation. He also puts up a prominent notice about acceptable and unacceptable behaviour. Within a few days he overhears the shopper making further offensive remarks to Frank. Chris reacts by having a word with the shopper, pointing out that this behaviour is unacceptable and explains that he will ban him from the store if this happens again. Chris keeps Frank in the picture with the actions he is taking and believes he is taking reasonable steps to protect Frank from third party harassment.
The fact that there is no requirement for repeated harassment to be by the same third party will make it tricky for employers to handle such situations in practice. For example, even if steps are taken in response to sex-based verbal abuse of an employee by a customer, so that the particular customer does not harass again, an employer can still be liable if another customer, or another third party (for example, a contractor), later harasses the same employee.
However, the Equality Act will not protect an employee who is harassed only once or twice by a third party, even if that third party is known to have harassed other employees in the past. It is questionable whether this wording is consistent with EU law.
It is currently unclear whether each of the three occasions of harassment will need to be in respect of the same protected characteristic, or whether, for example, the first could relate to sex, the second to disability, and the third to race. Case law clarification will doubtless arise before too long. In the meantime, employers would be well advised to take a cautious approach.
Many employers may be inclined not to act through fear of offending or losing customers, particularly in the current economic climate. However, such fears must be weighed against both the costs of losing a discrimination claim and the associated damage to reputation. Employers must perform a tricky balancing act, ensuring that they comply with the law while protecting their business. It also represents another example of employers being used by government as a vehicle for social policy.
WHAT SHOULD EMPLOYERS DO?
When it comes to preventative measures, steps to consider include:
• updating equal opportunities and harassment policies and communicating the provisions across the organisation;
• training line managers on the organisations approach to harassment and on how to handle complaints;
• displaying notices in the workplace stating that harassment of employees will not be tolerated;
• avoiding placing employees in situations where there is a known risk of harassment or a previous example of it; and
• training procurement managers and imposing equal opportunities obligations in contracts with suppliers.
The way in which any particular incident should be handled will vary depending upon the employees job and on the identity of the harasser. Possible responses might include:
• withdrawing the employee from the situation;
• informing the harasser or, where appropriate, their employer, of the unacceptable behaviour, explaining why it is inappropriate and asking for it to stop;
• terminating the employers relationship with the third party; and
• monitoring the working environment of any individual who has been subject to any instance of harassment with a view to avoiding exposure to further incidents.
It is advisable to deal with every incident of harassment appropriately as soon as it takes place. Employers should not wait for an employee to make two separate complaints before acting (apart from risking a constructive dismissal claim, the first complaint the employee makes may itself relate to two or more previous occasions of harassment).
The Masterclass article in the next Issue of the Bottom Line Express will consider the provisions relating to indirect discrimination, victimisation and equal pay contained in the Equality Act 2010.
For more information or advice on the Equality Act, call the Advice Service on 0844 892 2772.