What qualifies as harassment in the workplace?

‘Conduct’ can be a one-off incident as well as a series of incidents. Conduct can include (but is not limited to): ‘banter’ or ‘pranks’, written words, and posts or contact on social media.

The AV need not actually possess the protected characteristic nor does the alleged harasser need to know that the AV has the protected characteristic. An example is a worker subjected to homophobic ‘banter’ and name calling, even though his colleagues know he is not gay. As the form of the abuse relates to sexual orientation, this could still amount to harassment related to that characteristic. Alternatively, a group of men at work keep making offensive comments about a team member’s age. This makes them feel humiliated and anxious about coming to work.

This is likely to be relating to the protected characteristic of age. The AV is not required to ask for it to stop to make it illegal.

Overall, the AV’s perspective and the other circumstances of the incident(s) are taken into account in considering whether it is reasonable to conclude that the conduct has had the unlawful purpose or effect As well as creating obvious negative consequences for individuals and the wider workplace environment, bullying/harassment can lead to employment tribunal claims (as well as court claims under different legislation).

As an employer, you should do all you can to try to prevent bullying and harassment happening in the first place. There are obviously limits to how much can be done, but it is important to be aware that although the alleged harasser is responsible for their own actions, you may also be held responsible in respect of any legal claims through what is called ‘vicarious liability.’

Firstly, it is important to ensure that there is relevant information and training for employees to help inform and provide awareness on this topic.

Secondly, it is also recommended that you have a clear anti-discrimination/harassment policy and processes that allow employees to raise such issues (even if they are incidents that were not directed at them) and deal with complaints fairly and appropriately.

Thirdly, if you receive a complaint about harassment, take it seriously and investigate. By taking the complaint seriously, you show that you are trying to make your workplace fair, encourage employees to raise any issues, prevent or stop unacceptable behaviour and prevent legal action.

If a legal claim is brought, following the steps above can make the difference between:

• an employer being held vicariously liable, or not, for the acts of an employee (who has not followed the information/training given); and/or
• an employer being found guilty, or not, of unlawful harassment, or failure to deal with a complaint of harassment.

Prevention is better than the cure. But, if a cure must be applied, it is best done as soon and as effectively as possible – and be seen to be done.

If you are dealing with policies or a case involving harassment then contact Jason McKenzie and his team today.