Definition of harassment
The Equality Act introduces a uniform definition of harassment to all the protected characteristics apart from pregnancy and maternity, and marriage and civil partnership. It is defined as unwanted conduct which is related to a relevant protected characteristic and has the purpose or effect of creating an intimidating, hostile, degrading humiliating or offensive environment for the complainant or violating the complainant's dignity. The new definition of 'unwanted conduct related to a relevant protected characteristic' (rather than the current definition which refers to unwanted conduct that is 'on the grounds of' a protected characteristic) covers harassment based on perception and association. For example, a person who is harassed because of their spouse's religious beliefs, or a person who is harassed because they are wrongly perceived to be gay, would have a claim. The new definition also means that employees will be able to complain about behaviour which they find offensive even if it is not directed at them.
Liability for harassment by a third party
Protection against third party harassment currently exists only in relation to sex-based harassment. The Equality Act extends this so that an employer will be liable where a third party (such as a client, customer or contractor) harasses an employee on the grounds of their age, disability, gender reassignment, race, religion or belief, sex or sexual orientation, where:
- Harassment has occurred in the course of employment on at least two earlier occasions (whether or not by the same third party);
- The employer is aware that harassment has taken place; and
- The employer has failed to take reasonably practicable steps to stop it.
The example given in the Explanatory Notes to the Act is of a shop assistant with a strong Nigerian accent telling her manager that she is upset and humiliated by a customer who regularly uses the shop and each time makes derogatory remarks about Africans in her hearing. If her manager does nothing to try to stop it happening, the employer would be liable for racial harassment.
The "three strikes" provision is controversial as an employer can, in effect, "permit" an employee to be harassed twice before it is at risk of liability. It also fails to protect an employee who is harassed once or twice by a customer, even if that customer is known to have previously harassed other employees.
In practice
- Review harassment policies to ensure they cover harassment based on association and perception.
- Require employees to report harassment by third parties. Consider whether a formal reporting procedure should be introduced perhaps as part of a harassment policy.
- Consider whether it is necessary to notify third parties, such clients, customers or contractors, that harassing employees is unacceptable.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.