EMPLOYMENT LAW

What is Harassment at work?

Harassment at work is unwanted conduct toward another person.

What types of harassment are there?

There are several types of harassment:

harassment because of certain protected characteristics,
conduct of a sexual nature (sexual harassment) and
where someone is treated less favourably because of their response to being harassed.

What is the definition of harassment at work?

The law (Equality Act), defines harassment as where a person

engages in unwanted conduct to another person
related to a relevant protected characteristic
which has the purpose or effect of either
violating the other person’s dignity or
creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

What is sexual harassment at work?

Sexual harassment is defined as where a person

engages in unwanted conduct of a sexual nature
which has the purpose or effect described above

Sexual harassment need not be related to a protected characteristic – it’s simply where the unwanted conduct is of a sexual nature.

Other types of harassment at work?

In addition, the third type of harassment is where a person

has been subjected to sexual harassment, harassment related to sex, or harassment related to gender reassignment, and
they have either rejected or submitted to that harassment and
have been treated less favourably than they would have been if they had not rejected/submitted to the previous harassment.

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What counts as harassment?

The first basic requirement is that the unwanted conduct has to have the stated purpose or effect.

This means that even if the harasser didn’t intend to make you feel intimidated or humiliated, if that’s the effect of their conduct towards you, that still amounts to harassment. The proviso is that it must be reasonable for you to feel that way, so if your response is found to have been oversensitive, the conduct won’t count.

To count as harassment, the conduct must also be related to a protected characteristic. So, it must be related to age , disability, gender reassignment, race, religion or belief, sex or sexual orientation. You can’t claim harassment because of pregnancy or maternity, or because of marriage or civil partnership. There might be claims for sex harassment, or sexual harassment, or for sexual orientation harassment in these situations.

It can be harassment where the person harassed:

has a protected characteristic themselves (see above for the list of protected characteristics to which harassment applies)
is harassed because they are thought to have a protected characteristic, but don’t have it – for instance, they are assumed to be of a particular age, or sexual orientation, but actually aren’t
is harassed because of a connection to someone with a protected characteristic

is exposed to something that violates their dignity or created an intimidating, hostile, degrading, humiliating or offensive working environment for them – for instance, the conduct in question isn’t directed at them, or indeed at anyone, but might offend because it relates to a protected characteristic . The classic example here is “banter” that in fact amounts to harassment because it relates to, say, sex, race, or gender reassignment and has the effect of creating an offensive environment for colleagues in general.

Harassment can include behaviour like verbal abuse, written or email abuse, offensive jokes, “watercooler” gossip, making remarks about someone’s physique or appearance, social media posts, or sharing photos on social media.

Sexual harassment can include sexual comments or jokes, leering, making unwanted sexual advances, unwelcome grabbing or touching, spreading sexual rumours, sexually explicit messages or social media posts.

A single incident is sufficient – there is no need for a series of events or conduct towards you.

Sexual harassment can include comments, jokes, unwanted advances, or physical contact.

What is not considered harassment?

Conduct that isn’t related to a relevant protected characteristic won’t count as harassment. As such, bullying that isn’t related to age, disability, gender reassignment, race, religion or belief, sex or sexual orientation doesn’t count as harassment.

This is why it can be difficult to bring a claim for bullying that can’t be connected to a protected characteristic – it’s a bit of a glaring gap in employment law. It might be that you can resign and claim constructive dismissal, on the basis that the treatment has breached trust and confidence between you and your employer. However, it’s usually pretty difficult to succeed in a constructive dismissal claim on its own, without an additional element like a harassment or discrimination claim. You should always take legal advice before resigning where you feel that you’ve been driven to resign because of something that’s happened at work.

As to the types of conduct that in themselves won’t be likely to count as harassment, this will include things like reasonable management instructions, a fair performance management process, or a fair disciplinary process, or where you are demoted or transferred as a result of misconduct findings. Equally, a fair grievance process that, following a fair investigation, hasn’t upheld your grievance won’t be harassment.

Note the emphasis on “fair” – if you’re put into a performance management procedure because of your age, with a view to putting undue pressure on you to force you to resign rather than go through the process, then that could be age harassment.

How do I complain about harassment at work?

The first thing to do is check your organisation’s grievance procedure. It’s unlikely that a harassment complaint should be dealt with as a whistleblowing complaint, though this isn’t impossible if there is a public interest factor. You should usually raise a complaint as a grievance, which means your employer will investigate and it could (should) lead to disciplinary action against the harasser if your allegations are proven.

You should follow the grievance procedure, but it’s important to include all relevant information in a complaint, so that your employer can’t later claim that you hadn’t made them fully aware of the circumstances.

See our post on grievances for further information.

Employment Law Solicitor

If you need more help around discrimination at work then do reach out to our expert employment law solicitors at employment@qlaw.co.uk or call us on 03300 020 863.