September 10, 2018

Harassment at Work – a Comprehensive Walkthrough

Employers should foster a fair and inclusive working environment that enables everyone to feel they can contribute at work.

The conflict which harassment creates should not be underestimated.

Employees can be subject to high levels of stress which can reduce engagement and may lead to higher staff turnover, increased sickness absence and less productive and effective teams.

Furthermore, an organisation’s public image can be damaged when harassment incidents occur, affecting relationships between an employer and their current and future employees, as well as their customers.

What does harassment look like?

Harassment may be against one or more people and may involve single or repeated incidents ranging from extreme forms of intimidating behaviour, such as physical violence, to more subtle forms like simply ignoring someone.

It can often occur without witnesses, and takes place in face-to-face interactions as well as online.

Examples include:

  • unwanted physical contact
  • unwelcome remarks about a person’s age, dress, appearance, race or marital status, jokes at personal expense, offensive language, gossip, slander, sectarian songs and letters
  • posters, graffiti, obscene gestures, flags, bunting and emblems
  • isolation or non-cooperation and exclusion from social activities
  • coercion for sexual favours
  • pressure to participate in political/religious groups
  • personal intrusion from pestering, spying and stalking
  • failure to safeguard confidential information
  • shouting and bawling
  • setting impossible deadlines
  • persistent unwarranted criticism
  • personal insults

Sexual harassment and #metoo

The issue of sexual harassment in particular continues to be a significant story in the media. A 2016 report Still just a bit of banter? showed that more than half of women overall, and nearly two-thirds of women aged 18-24 years old, had experienced sexual harassment at work.

Authorities are working on approaches to change the culture that leads to sexual harassment, with the Equality and Human Rights Commission’s report “Turning the tables: ending sexual harassment at work” just one example, offering ten recommendations after gathering evidence from individuals and employers.

Employers’ first responsibility is to clearly articulate the organisation’s policy on harassment at work, dealing with any issues promptly, seriously and discreetly. But HR also has a role to play beyond the formal policies and practices. HR professionals should lead development of a broader positive culture in which harassment is known to be unacceptable and where individuals are confident enough to bring complaints without fear of ridicule or reprisal.

The Equality Act 2010, which applies in Great Britain, defines harassment as:

‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating and intimidating, hostile, degrading, humiliating or offensive environment for that individual’.

Harassment and employer liability

Harassment on the basis of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation is covered by the Equality Act 2010.

The law protects individuals from harassment while applying for a job, in employment and in some circumstances after the working relationship has ended (for example, in connection with the provision of a verbal or written reference).

There is also protection for people against harassment on the basis of their membership or non-membership of a trade union and, in Northern Ireland, against harassment on the basis of political belief.

In England and Wales, harassment because of an employee’s political views is not automatically protected, although employees who were dismissed on or after 25 June 2013 as a result of their political opinion or affiliation don’t need two years’ service in order to bring an unfair dismissal claim.

Employers are liable for harassment between employees, and can also be liable for harassment which comes from a third party (for example, a customer).

And while the Government has removed express protection for this third party harassment from the Equality Act, liability can still arise as a result of other legal duties: for example breach of contract, direct discrimination, the Protection from Harassment Act 1997, and so on.

These other legal duties and good practice mean that employers should continue to take steps to protect employees from all forms of harassment.

The onus on employers and individuals to prevent harassment in the workplace

Despite increasing awareness of the problem of harassment it remains a significant workplace issue.

An employer’s first responsibility is to put in place a robust and well communicated policy that clearly articulates the organisation’s commitment to promoting dignity and respect at work.

But as employers’ responsibilities may extend to any environment where work-related activities take place, such as work parties or outings and social media, employers should be especially aware of ‘cyber bullying’. Detrimental texts sent via mobiles or images of work colleagues posted on external websites following work events could amount to harassment.

Importantly, all individuals have a responsibility to behave in ways which support a non-hostile working environment for themselves and their colleagues.

They should play their part in making the organisation’s policy a reality and be prepared to challenge inappropriate behaviour and take action if they observe or have evidence that someone is being harassed.

Individuals can be personally liable to pay compensation and can be prosecuted under criminal as well as civil law.

Employers and individuals can be ordered to pay unlimited compensation where discrimination-based harassment has occurred, including the payment of compensation for injury to feelings.

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About the author

Philip Warnes

Employment Tribunal Consultant