In 2018, ‘harassment’ is a word on everyone’s minds, yet its definition fluctuates due to overuse and incorrect usage. To clarify, here are the basics facts that employers and employees need to know about harassment in the workplace.
What is harassment?
Under section 26 of the Equality Act 2010, harassment has three definitions to cover different circumstances.
1. General definition
Person (A) harasses another (B) when A engages in unwanted conduct related to a relevant protected characteristic (i.e. age, disability, gender reassignment, race, religion or belief, sex and sexual orientation) which has the purpose or effect of either:
a) violating B’s dignity, or
b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
2. Sexual harassment
Sexual harassment occurs when A engages in unwanted conduct of a sexual nature, the conduct of which has the same purpose or effect as harassment’s general definition.
3. Rejection or submission to sexual harassment
B rejects or submits to such A’s conduct, and A treats B less favourably than if B had responded in the opposite manner to A’s conduct.
Correcting common myths
1. “Everyone gets harassed.” Under the colloquial definition, everyone to some degree can experience harassment. However, the legal definition means harassment only occurs when the unwanted conduct or less favourable treatment is related to a protected characteristic.
2. “Harassment must be a series of connected events.” A one-off incident has the potential effect of creating/curating an environment that is intimidating, hostile, degrading, humiliating or offensive, therefore one incident is enough to be classified as harassment.
3. “B must find a comparator to prove their case.” B needs no comparator to demonstrate less/more favourable treatment by A.
4. “B must have informed A if the conduct was unwanted.” B does not need to make A aware whether the conduct was unwanted or not. There is no right for would-be harassers to “test the water” with impunity if the conduct is serious enough for it to be considered harassment.
5. “If A didn’t mean their conduct to cause such effect, it’s not harassment.” Even A contends their conduct’s purpose was not to create the above effects on/around B, it is for Employment Tribunal to assess the effect of the conduct from B’s subjective viewpont.it was reasonable for the conduct to have such effect, by considering B’s perception, other circumstances of the case, and whether it is reasonable for the conduct to have that effect. Thus provided any offence caused in unintentional, there may be no claim for harassment if the victim is ‘hypersensitive’.
Employers may not escape liability for harassment by their employees if the employer’s passivity permits a violation of an employee’s dignity or the creation of an intimidating and hostile environment due to their marital status, pregnancy, maternity, illness etc. Employers must take all reasonable steps to prevent employees from discriminating or conducting themselves in a manner that harasses a person – that is their only defence in cases such as this. This is the same for any harassment an employee suffers from a third party, such as a customer or visitor.
In a successful claim for harassment, an Employment Tribunal may:
- Order the employer (referred to as the ‘Respondent’ in the Tribunal) to pay compensation;
- Make an appropriate recommendation aimed at reducing adverse effect of the discrimination on both the harassed employee (referred to as the ‘Claimant’ in the Tribunal) and wider workforce; and/or
- Make a declaration as to the rights of the Claimant and the respondent in relation to the matters to which the proceedings related.
The purpose of compensation is to put the claimant in the position that they would have been in, but for the discrimination. Compensation is an amount based on the financial loss or injury to feelings an employee suffers as a result of the harassment or discrimination. Compensation cannot be inflated to have a punitive effect on the employer.
A successful claimant can recover loss of earnings (e.g. the result of being dismissed or from failure to award a promotion, pay rise or bonus). Additionally, an award for future financial loss may be awarded, with calculations based on whether the successful claimant has a new job at a lower salary, and the likelihood of the person acquiring a job with the same benefit package as before. While this may increase any award, a potential way to reduce awards for unfair dismissal is by persuading the Employment Tribunal that a fair dismissal would have occurred, regardless of any harassment. This is known as a Polkey deduction and can reduce an award up to 100% and can restrict any future loss.
In assessing which amount of compensation to give for injury to feelings, the Employment Tribunal has to consider the harassed person’s vulnerability, the degree of hurt, distress or upset caused, the position of the person found to be harassing/discriminating, and the seriousness of the treatment as well as the harassed employee’s personal characteristics, medical conditions, nature of their job, and manner in which the employer dealt with any grievance.
Awards for injury to feelings are classified based on “Vento bands” (from the authoritative case of Vento v Chief Constable of West Yorkshire Police from 2002):
- The lower band (£900 to £8,600): appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence.
- The middle band (£8,600 to £25,700): serious cases, which do not merit an award in the highest band.
- The top band (£25,700 to £42,900): the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race.
While there is no upper limit to the award an Employment Tribunal can give in harassment/discrimination cases, Tribunal guidance provides that only the most exceptional case should be awarded injury to feelings exceeding the top Vento band.
Everyone is legally entitled to work in a supportive environment that respects individual’s dignity. If you recognise or think you have been subjected to potential harassment in your place of work, Jackson Boyd can help you. Please contact us today by calling 0330 029 6765 or via our online enquiry form.