Discrimination (Equality Act 2010) Harassment Flashcards
What is the definition of Harrassment?
Harassment is defined under S26 The Equality Act 2010 as occurring where a person engages in unwanted conduct related to a protected characteristic or of a:
sexual nature which has the purpose or effect of violating another’s dignity or creating a hostile, degrading, humiliating or offensive environment for another.
The Equality Act 2010 S26 (4) considers the ‘reasonableness’ of the claimant’s response.
The Equality Act 2010 S26 (4) considers the ‘reasonableness’ of the claimant’s response.
This requires the tribunal to take into account:
(a) the perception of the claimant,
(b) the other circumstances of the case, and
(c) whether it is reasonable for the conduct to have that effect.
This balancing act will require the courts to consider both the nature of the parties’ relationship, as well as the work environment.
The interpretation of ‘harassment’ is varied and is highly dependent upon the facts of the case.
What do the courts consider as whole when determining harrassment?
The context and general atmosphere of the workplace is taken into consideration but will not justify comments which cannot fall within the definition of banter.
The courts are willing to find an employer vicariously liable for harassment committed by an employee where they have failed to take measures to address or prevent such discrimination, Jones v Tower Boot (1997).
The courts appear to take this matter quite seriously and have confirmed that a merely giving a formal warning to the harasser will not suffice and, if the behaviour continues, further disciplinary action should be taken, Enterprise Glass v Miles (1990).
Ultimately, it would appear the courts interpret s26 harassment in a broad and flexible way that focuses upon the facts of each case and the characteristics of the parties involved.
Can a single act of harassment amount to a hostile environment?
One area that illustrates this pragmatic approach is whether a single act of harassment is sufficient to create a hostile environment.
It is the responsibility of the court to decide whether a single verbal act of sexual harassment can be found a complaint but, in Insitu Cleaning Co Ltd v Heads, it was sufficient.
Can an employer be liable for the acts of its employees?
An employer is liable for the acts of its employees (S109).
In Jones v Tower Boot Co, the employer was held to be vicariously liable and should have taken steps to deal with the issue.
One possible defence available to the employer in respect of all discrimination claims is that it had taken all reasonable steps to prevent employees acting in a discriminatory manner, Balgobin and Francis v London Borough of Tower Hamlets.
Merely giving a formal written warning to the harasser about their behaviour will not be sufficient if the behaviour continues, further disciplinary action must be taken. Enterprise Glass Co v Miles.
What do the courts consider when determining harrassment?
The importance of considering the dynamics of the parties, as well as the nature of the work environment, was again stressed in Evans v Xactly.
Mr Evans stated that during his employment he had been subjected to comments relating to his weight and also his connections to the traveller community. He states that he was called a ‘fat ginger pikey’.
There was no harassment that related to a protected characteristic or race or disability.
What view do the courts take when considering ‘banter’?
A similar issue arose in Minto v Wernick Event Hire Ltd (2009), where an employee was subject to daily remarks of a sexual nature. In this case, the ‘banter’ defence was not accepted as the tribunal found that the facts of the case suggested this was not an equal exchange and the complainant was not a willing participant in these communications.
Where the complainant is a participant in such banter and does not complain at being the subject of such comments, they will not be able to meet the statutory definition of harassment.
Case supporting racial harrassment
With regard to claims of racial harassment, a recent case again highlights the importance of being mindful of the precise words used.
In Basi v Snows Business Forms Ltd (2009), it was held that, although the environment was one where banter occurred , a comment made to an employee of Indian origin describing him as a “cheeky monkey” fell outside the usual level of acceptable banter and was racial harassment.
Do the courts take into account the persons motives?
The motives of the person making the alleged harassing statements will also not be a decisive point in determining whether harassment has taken place. Harper v Housing 21 (2012).
The intentions of the statement maker are not a focal point of consideration; not least because this defence could clearly be abused.
