Harassment in the workplace

Sadly, recent reports and headlines suggest that bullying and harassment continue to be an issue in workplaces irrespective of the sector. A recent government consultation showed over 50% of respondents had experienced harassment. This begs the question how do you identify harassment in the workplace and what can employers do to reduce the risk of it occurring?

What is ‘harassment’

Broadly there are two main categories of harassment:

• Harassment related to protected characteristics: Broadly, this is when a person receives unwanted conduct which violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. The conduct must be related to a relevant protected characteristic, namely, age; disability; gender reassignment; race; religion or belief; sex and sexual orientation.
  
  Note that conduct can amount to harassment even if the person does not actually have the protected characteristic, as long as the treatment was related to that characteristic. For example, a person can be harassed on the grounds of sexual orientation if he was being teased for being gay, even if he is not actually gay.

• Sexual harassment: This is when a person receives unwanted conduct of a sexual nature which creates an intimidating hostile or degrading environment for them.Or alternatively when someone is treated less favourably because they reject another person’s sexual advances.

There is also a separate offence of harassment in the Protection from Harassment Act 1997, which is outside the scope of this note and focuses on conduct causing alarm or distress.

Types of behaviour that can amount to harassment

Different types of conduct can constitute harassment ranging from:

• non-verbal/visual conduct: such as leering or making lewd gestures
• verbal conduct: such as jokes or using offensive language; to
• physical conduct: including unwanted touching.

Often the conduct will consist of more than one incident but it can also arise from a one off incident if it is sufficiently serious.

Note that intent does not matter. This means it does not matter that the person accused of harassment did not intend for the other person to be offended. The conduct can still amount to harassment if it had the effects explained above.

Key risks for employers

Legally, employers are liable for the acts of harassment carried out by their employees in the course of their employment. They can be liable even if they did not know or approve of the things the employee was doing that amount to harassment. This can be very costly as if an employee successfully brings a harassment claim they can be awarded uncapped compensation. Negative publicity from such a claim can also have a significant impact on a business.

Aside from this, whether or not employees choose to bring legal claims, if harassment takes place there is of course the negative impact on the individual’s wellbeing and the culture of the team and the business. This can impact staff absence and staff turnover for example.

Managing legal risk

The law does provide a defence to a harassment claim if the employer can show they took ‘all reasonable steps’ to prevent the employee from doing the conduct said to amount to harassment and any conduct of that kind.

Reasonable steps includes, for example, not just having an anti-harassment policy but implementing it and providing regular anti-harassment training to staff. Beware that to help provide a defence to a claim any training must not be brief and superficial but must be of a good standard, effective and regularly provided (typically annually). As well as this, if there is any suggestion that employees have forgotten the training it should be refreshed more frequently.

This note is for information only and is not legal advice. It reflects the position as at 28 October 2021.