The document outlines the legal definitions and implications of workplace harassment under the Equality Act 2010, detailing the responsibilities of employers in preventing and addressing harassment. It discusses different types of harassment, including sexual harassment, and the necessary steps employers should take to protect employees and maintain a respectful work environment. Additionally, it highlights the importance of training and policies to ensure compliance with employment law and protect against claims of harassment.

1. Harassment at Work
Rupert Scrase & Martin Augustus
1 December 2015
Bristol Pavilion

2. Seminar outline
• Introduction
– Rupert Scrase
• The Legal Definition of Harassment
– Rupert Scrase
• Practical Steps for Employers
– Martin Augustus

3. Scrase Employment Solicitors
Training from experience
– in house training programmes
Practical, straightforward advice
– Fixed rate for projects, e.g checking contracts or
updating handbooks
– Hourly rate, or
– Employment Law Advice Agreement (ELAA)

4. ELAA
A fixed annual fee covers you for:
• Employment law advice on the phone, email
or in person
• Preparation and representation in the
Employment Tribunal
• Drafting settlement agreements
• Checking of employment related
documentation

5. The Legal Definition
Rupert Scrase

6. Introduction
• Meeting the differing needs of employees is a
careful balancing act ... In dealing with
employment issues, you need to be fair to the
individual concerned, keep your other
employees happy and comply with the law –
while at the same time making sure your
business can prosper.
– Equality and Human Rights Commission

7. Legal definition
• Equality Act 2010 – provides for 9 ‘Protected
Characteristics’
• Harassment relating to Marriage and civil partnership
and pregnancy and maternity is not protected
directly, however …
Age Disability Gender
reassignment
Marriage and civil
partnership
Pregnancy and
maternity
Race
Religion and belief Sex Sexual orientation

8. Legal definition
• Harassment related to pregnancy and
maternity would be likely to amount to direct
discrimination related to sex
• Harassment related to civil partnership would
be likely to amount to direct discrimination
related to sexual orientation

9. Legal definitions
• The Equality Act 2010 prohibits three types of
harassment:
– Harassment related to a ‘relevant protected
characteristic’ (s.26(1));
– Sexual harassment (s.26(2)), and;
– Less favourable treatment of a worker because
they submit to, or reject, sexual harassment or
harassment related to sex or gender reassignment
(s.26(3))

10. Legal definition
• The harasser engages in unwanted conduct
which has the purpose or the effect of;
a) Violating the dignity of another person, or;
b) Creating an intimidating, hostile, degrading,
humiliating or offensive environment for that
other person

11. Unwanted conduct
• Covers a wide range of behaviours;
From the EHRC’s code of practice
Spoken words Written
words
Abuse Imagery
Graffiti Gestures Facial
expressions
Mimicry
Jokes Pranks Physical
behaviours

12. Unwanted conduct
• The conduct must be unwanted
• Unwanted is essentially the same as
unwelcome or uninvited
• The complainant does not have to have
expressed objection in order for the conduct
to be unwanted

13. Unwanted conduct
• The conduct does not have to be directed at
the complainant
– Viewing pornography on workplace computers
even if not visible to the complainant could
amount to harassment
• The conduct does not have to be on-going, a
single event is enough to constitute
harassment

14. Purpose or effect
• The perpetrator's intentions or motives are
not relevant, even if entirely innocent
• The effect is considered from the
complainant’s point of view
• It does not normally matter whether the
complainant is particularly sensitive to the
treatment in question

15. Purpose or effect
• The employer need not know or approve of
the behaviour in order to be liable
• Only defence is the ‘reasonable steps’ defence
which is discussed later

16. Purpose or effect
• The following must be taken into account in
determining whether conduct had that effect
– The perception of the worker
– Other circumstances that may be relevant;
cultural norms, the environment, mental health,
mental capacity
– The conduct shall only be regarded as having that
effect if in all of the circumstances, including the
particular perception of the complainant, it should
reasonably be considered as having that effect

17. On or related to prohibited
grounds
• No requirement for the complainant to put
forward a comparator
• ‘related to’ has a broad meaning
– Related to the worker’s own protected
characteristic, or;
– Where the worker has a connection with someone
with that protected characteristic

18. Perception
• The definition is broad enough to allow a
worker to claim harassment where they are
harassed relating to a protected characteristic
which they do not possess
– Could be mistaken – A Sikh worker is exposed to
Islamophobic comments on the mistaken belief
that he is Muslim
– Or deliberate – a straight man is taunted for being
gay, even though the perpetrator knows that he is
heterosexual

19. Third party harassment
• The Equality Act originally contained specific
provisions dealing with harassment by a third
party (perhaps a customer, member of the
public or supplier)
• These provisions were seen as being
unworkable and were repealed in 2013.

20. Third party harassment
• However, even thought the specific provisions
in the Equality Act were repealed, an
employer’s reaction (or lack of reaction) to
harassment of an employee by a third party
may still amount to harassment or
discrimination

21. Sexual harassment
• Occurs when a person engages in unwanted
conduct which is of a sexual nature
• Can be verbal, non-verbal or physical conduct
Unwelcome sexual
advances
Touching Sexual assault
Sexual jokes Displaying
pornography
Sending emails or
texts of a sexual
nature

22. Less favourable treatment
• A worker is treated less favourably by their
employer because that worker submitted to,
or rejected unwanted conduct of a sexual
nature, or unwanted conduct which is related
to sex or to gender reassignment
• The initial conduct may have been committed
by the person who treats the person less
favourably or by another person

23. Practical Steps for Employers
Martin Augustus

24. Reasonable steps
• An employer can defend a claim that it is
liable for acts of harassment, committed by its
employees if it can show that;
– It took all reasonable steps to prevent the
employee from
• Doing that thing;
• Doing anything of that description

25. Reasonable steps
• What the employer did before the event is
relevant to the defence, not what it did
subsequently
• The employer cannot rely on the defence if it
did not take steps that are reasonable, even if
the steps in question would not have made a
difference to the case in hand

26. Practical steps
• Does your employer have in place a written
equality policy?
• The policy might be referred to by other titles
such as a diversity policy or dignity at work policy
• Does the employer have a policy and procedure
for dealing with harassment?
• The harassment policy should be separate from
the employer’s disciplinary and grievance
policies

27. Practical steps
• Employers can be liable for acts of harassment
carried out by their employees
– Even if the employer does not know about the act
or condone it
• Employees can themselves be held liable for
actions of harassment which they perpetrate
• Training is a key element of a reasonable steps
defence

28. Practical steps
• Equality Action Plan
– Policies and procedures are not enough
– Employers need to show that they have put
policies and procedures into action
– and, done all that they can to ensure that
employees are not subjected to harassment

29. Practical steps
• Is your organisation's equality policy a ‘living’
document?
– Is it regularly reviewed?
– Are employee representatives involved in the review
process?
– Is the policy communicated to all employees at the
beginning of their employment?
– Is an up-to-date policy readily available through an
intranet or other method?
– Is the policy accessible to employees with disabilities?

30. Practical steps
– Does the policy set out the employer’s ethos and
values?
– Does it set out the employer’s commitment to
equality?
– Does it set out what is and what is not acceptable
behaviour at work? (and in certain circumstances
away from work)
– Does the policy set out how the employer will deal
with an incident of harassment?

31. Practical steps
• Have managers and others been giving
training in equality?
– Does the training cover the requirements of the
employer's policies and procedures on equality
and harassment?
– Does the training cover acceptable and
unacceptable behaviour
– Do new employees receive training as part of
induction and is the training regularly reviewed
and updated?

32. Reasonable steps
• When harassment has occurred in the past,
what has the employer done about it?
– Have the perpetrators been dealt with
appropriately?
• Counselling
• Disciplinary action
• Dismissal

33. Reasonable steps
• Does the employer carry out monitoring?
– Does the employer use monitoring results to see if
any practices need to be changed?
– Are you aware of background statistics for your
area?
• What percentage of the population of Bristol describe
themselves as Black or minority ethnic?
• What percentage of the population of the UK describe
themselves as gay, lesbian or bisexual?

34. Case Studies

35. Case Study 1
• Mr Heafield, a Catholic, was a sub-editor on
the Times newspaper
• A news stories in development relating to the
Pope in the context of allegations of
paedophilia in the Catholic Church was given
the working title “the Pope”

36. Case Study 1
• When a senior editor realised that the news
story was not yet ready he shouted across the
newsroom “Can anybody tell me what's
happening to the ******* Pope?”
• Mr Heafield objected stating that he found the
comment to be “offensive, unnecessary and
blasphemous”
– Heafield v Times newspaper [2012] ET

37. Case Study 2
• Miss Karmazyn and three others were
waitresses, they were all immigrants from
Eastern Europe with between two and five
years services
• They claim that they were subjected to
harassment by the Restaurant owner
throughout their employment
• Required to wear short skirts, references to
their sex lives etc

38. Case Study 2
• A female assistant manager, who had acted as
a “buffer” between the claimants and the
owner left work due to illness
• The claimants accepted that sometimes they
had engaged the owner in conversation about
his own sex life as this made him easier to
handle
• Each brought claims of harassment
– Munchkins Restaurant v Karmazyn & ors [2009] EAT

39. Case Study 3
• Mr English claimed that he had been
subjected to homophobic banter, in particular,
calling him “faggot”
• This was because;
– He had attended boarding school, and
– He had lived in Brighton
• His colleagues knew that he was not gay
– English v Thomas Sanderson Ltd [2008] EWCA

40. Case Study 4
• Miss Southern was a waitress in a hotel
• She claimed that she had been harassed by
her manager over a period of 8 months
• She was on a zero hours contract and had a
history of mental illness
• She claims that she was touched, kissed and
subjected to inappropriate remarks

41. Case Study 4
• She complained to another line manager and
was told to put the complaint into writing but
nothing further happened
• An investigation carried out later when further
harassment was alleged was cursory
– Southern v Britannia Hotels [2015] ET

42. Equality Awareness Training
• Equality awareness training is essential for
anyone in a supervisory or managerial role
• As well as reducing the legal risk, equality
awareness training can help employee feel
that they are treated with dignity and respect
at work

43. SES Equality Awareness Training
• We can provide in-house training for your
organisation which includes:
– The law on equality and discrimination
– Equality in practice
– Understanding harassment and bullying
– Employer’s and employee’s responsibilities
– Case studies
• This should assist you in running a ‘reasonable
steps’ defence

44. SES Equality Awareness Training
• Up to 30 delegates
• All delegates are issued with a certificate of
attendance
• Our usual fee for a half day training session is
£825 plus VAT (plus mileage)
• Until the end of February 2016, for today’s
attendees we will charge a fee of just £725
plus VAT (plus mileage)

45. Whilst every effort has been made to ensure the
accuracy of this presentation, the information
contained within it is not comprehensive and
does not constitute ‘advice’. You should not
take action without first seeking professional
advice.
Scrase Law Limited t/a Scrase Employment
Solicitors.

46. Our next event
Employment Law Update – 28 January 2016
Thank you
www.scraselaw.com
twitter.com/scraselaw