This page discusses harassment in terms of UK law. Page written for T-VOX by Jennifer Kirk based on legal texts, case law and UK legislation. Help us expand our legal information by joining our team and writing about laws in your own country.
Whilst Racial and sexual discrimination have been unlawful under the Race Relations Act (RRA) and the Sex Discrimination Act (SDA) respectively, it is only comparatively recently that specific legislation has defined harassment specifically as unlawful.
Because of the rise recently in awareness of the issues involved in harassment, recent trends have shown significant rises in the number of people making claims of harassment at Employment Tribunals. If the complaint is serious, high damages may be awarded against the Employer, thus it is important for the Employer to take seriously any allegation of harassment at an early stage and take steps to quickly resolve it.
There is also legislation in place to be able to deal with discrimination, and this legislation is distinct to the SDA and RRA. See Legislation, below.
Harassment occurs when, on the grounds of race, disability, sex, sexual orientation, belief or religion, an employer – or their agent such as another employee or a manager – engages in unwanted conduct which has the purpose or effect of violating an individual’s dignity or creating an interrogating, degrading, hostile, offensive or humiliating environment for the employee in question. This is wide spectrum, and covers all types of harassment. The law is also not exhaustive.
Such actions can be:
- Physical conduct;
- Verbal conduct; and
- Non-verbal conduct.
In addition, whilst the conduct must be unwanted by the recipient, it does not necessarily have to be that the harasser has a motive or an intention to harass. So it is still harassment even if the harasser does not know there is harm caused by their actions.
An employer is liable, as is the case for many other acts, for the actions of their employees during the course of employment. Whilst it would be reletively easier to prove that a manager or supervisor to the recipient could be guilty of harassing ‘during the course of employment’, it may require more proof if the harasser is in a subordinate position.
Employers can avoid liability if they can prove that they took such steps that were reasonably practical to prevent harassment from occuring. However, employers cannot use this defence to a claim of harassment under the Protection From Harassment Act 1997, under which they will have vicarious liability for the actions of their employees.
The best way an Employer can avoid complaints of harassment is by ensuring that harassment does not occur in the first place. The first step is to have in place an Equal Opportunities policy which, amongst other things, defines harassment and makes it clear to Employees that they should not allow it to occur. In addition, Employees must be made aware of these policies, education about them provided, and a set of consequences if they still harass made clear to them.
Employees should certainly be made aware that the Employer takes seriously any claim of harassment, and that such actions would be considered an act of Gross Misconduct.
Dealing with harassment
Complaints of harassment can, by their nature, be disruptive to the workplace. If a complaint of harassment is brought up by an employee, usually in the form of a statutory grievance, the Employer should consider whether to deal with it either formally or informally. Usually the recipient of the harassment will be asked which approach they would like to see.
If an informal approach is deemed appropriate, then the alleged harasser should be informed that their behaviour is inappropriate and is causing distress. They should be warned and told that the matter will be kept under revue, and that any further action deemed to be harassment may result in further action being taken against them. At all stages the Employee who complained of the harassment should be kept informed of the proceedings, and be told that if any further harassment occurs they should report it immediately so that further action can be taken.
If either the alleged harassment is too severe, or the complainant wishes a formal approach to be taken, a disciplinary procedure should be taken as follows:
- Get a full written statement from the complainant.
- If appropriate, suspend the alleged harasser pending the investigation.
- If possible, take statements from all staff who may have witnessed the alleged harassment.
- Ask the alleged harasser to provide a full statement of their side of events.
- Hold a disciplinary meeting with the alleged harasser so that they may have the opportunity to answer to the complaint and justify, excuse or defend their conduct – necessary if there are any elements of doubt over the alleged harassment.
- As is often the case there may be no witnesses leaving the Employer to decide between one person’s word over another’s.
If there is an outcome that harassment took place, then the Employer should consider what penalty to impose against the harasser. This may be outright dismissal for Gross Misconduct, or in some circumstances they may be transferred away to another office or department where they will not come into contact with the complainant. If the harassment is deemed to have been of a less serious nature, then the issue of a final written warning to the harasser may be appropriate.
If not satisfied with the outcome of any investigation, the employee has the right after the statutory 28 day period from informing their employer about a formal grievance for harassing treatment, to take the matter to an Employment tribunal.
Criminal Justice and Public Order Act 1994
- It should be noted that the Criminal Justice and Public Order Act 1994 only applies in England and Wales.
This Act provides means whereby intentional harm, alarm or distress is a criminal offence. This makes ALL forms of harassment illegal, punishable on conviction by a six month jail term or a £5,000 fine. It is necessary to prove that the harasser’s actions were intentional, and that some-one was actually harmed by their actions.
Protection From Harassment Act 1997
- Whilst the Protection From Harassment Act 1997 was primarily created to provide protection against stalkers, it has been used in other ways.
Under this Act, it is now an offence for a person to pursue a course of action which amounts to harassment of another individual, and that they know or ought to know amounts to harassment. This Act provides for a jail sentence of up to six months or a fine. There are also a variety of civil remedies that can be used including awarding of damages, and restraining orders backed by the power of arrest.
In Scotland the Act works slightly differently:
- A jail term of up to five years in very serious cases can be imposed.
- Civil remedies include damages, interdict and non-harassment orders backed by powers of arrest.
- Protection From Harassment Act 1997
- Criminal Justice and Public Order Act 1994
- Grievance procedure
- Employment tribunal