The basic premise of harassment is that it is unwanted conduct that is offensive to the recipient. In Insitu Cleaning Co. Ltd. V Heads (1995) IRLR the court accepted that `unwanted` includes `unwelcome` or `uninvited`.
In British Telecommunications plc v Williams 1997 ( IRLR 668 )the EAT interpreted the earlier Porcelli case as confirming that , because conduct constituting sexual harassment is gender specific there is no need for the complainant to establish that she has been treated less favourably than a male comparator. This meant it was no defence for the employer to show that persons of the other sex would have been similarily treated.
. In Reed& anor v Stedman (1999 ) IRLR 299 the EAT ruled that `sexual harassment consists of words or conduct which are unwelcome to the recipient. Referring to the Code the EAT confirmed that it is for the recipient to decide what is acceptable and / or offensive. The case of Chief Constable of the Lincolnshire Police v Stubbs (1999) clarified that while a chance meeting outside of work would not be deemed `in the course of emploment` activities such as business trips, office parties, organised leaving parties and meeting with colleagues after work may well be in the course of employment.
New Law ?
In 2001 the European Union introduced a legislative framework to tackle discrimanation on six fronts; sex, race, disability, sexual orientation, religon and age.. This framework comprised of three EC Directives namely The Race Discrimination Directive (no.2000/43), The Equal Treatment Directive (NO 2000/78) and The Equal Treatment Amendment Directive ( No. 2002/73). All of these directives contain specific provisions to protect workers from harassment and state a common definintion of harassment. This closely follows the “sexual harassment” definition stated in the 1991 EC Recommendation and Code of Practice on the Protection of the Dignity of women and men at work ( No.91/131/EC).
Under the new law the net was widened to include new anti-discrimination measures covering sexual orientation, religon and belief. Additionaly a specific definintion for “ harassment” was introduced and applied across all strands of discrimination law
Although not having same force in Law as a directive, which bounds all EU member states, the Code has been constructively used to shape case-law developments in the UK. In October 2002 the Uk Government published draft regulations detailing how it proposes to implement these EC directives, incorporating a consistant definition of harassment. This new definition makes harassment a ground of unlawful discrimination distinct from direct or indirect discrimination. Indeed according to the IDS ( March 2003) the uk regulations definintion lessens the burden of proof required to proof harassment has taken place. While the EC directive (2001) state that the complainant is required to show that the purpose or effect of the unwanted conduct has both violated their dignity and damaged the workplace environment the UK regulation only require that the complainant show that either of the two has occurred. Therefore, for UK employment purposes, if it can be shown that the applicants dignity has been violated then this alone may suffice to proof a case of harassment even where the work-place environment has not been adversely affected. This point is of particular importance where a one off act, which we have already said may be sufficient to be deemed harassment, may affect a person`s dignity but would be less likely to impact on the over-all working environment.
In addition these new harassment provisions requires a degree of subjectiveness be applied by the courts when deciding if harassment has taken place. Therefore the conduct must have a detrimental effect on the complainant or the work-place. The purpose or interntion of the harasser are less important under these new provisions.
Employment tribunals will only be entitled to make a finding of harassment if they have taken regard to all of the circumstances including the perception of the complainant.
However the courts have sought to limit the subjectivity of this test in order to avoid employers being held liable by an over-sensitive employee.
Since the publication of this EC code and subsequent regulations the UK courts have taken into account it`s definintion of harassment when applying the SDA
A recent decision by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary (2003) UKHL 11 confirmed that the notion of detriment does not require the complainant to demonstrate any physical or economic consequence to the act of discrimation complained of and that cases of harassment should be considered from a worker`s viewpoint ( Lewis, 2003). Such an approach was confirmed in the case of Driskel v Peninsula Business Services Ltd. & Orrs (2000) IRLR 151 where the hypersensitivity of the applicant to the employer`s conduct was deemed to be unreasonable.
The new regulations distinguish between ` harassment` and `sexual harassment`. The fromer mirrors the definition applicable in respect of race, disability, sexual orientation, religon and age discrimination directives. Here harassment occurs where unwanted conduct related to the sex of a person ocurrs with the purpose or effect of violating dignity of affecting the working environment. On the other hand sexual harassment is defined as ` where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs with the same purpose or effect outlined above. harassment It would appear from this that sexual harassment is distinguished from normal harassment in that it the conducrt itself is of a sexual nature wheras harassment is unwanted conducted directed at the sex of the victim.
The UK gorernment has already met it`s obligation to implement provisions outlawing discrimation on grounds of sexual orientation and religon / belief by the introduction of ********* in December 2003
Other Civil and Criminal liability
In the Uk there is no legidslation which specifically addresses the problems of bullying or harassment at work. As previously mentioned an employee who is bullied or harassed at work may prove their case of construxctive dismissal. The action or actions may be singular or consist of a series of incidents which may seem trivial in themselves. However the cumalitive effect may be such that a court will find that trust and confidence has been undermined thereby entitling the employee to resign and claim constructive dismissal.
It should also be noted that serious harassment at work may give rise to criminal liability on the part of the harasser. This may consist of a criminal assault which could be punishable under S.4A of the Public Order Act 1986 or the Protection from Harassment Act 1997
Employers Liability
In most cases of harassment in the workplace the offender is a fellow worker rather than an employer. Nonetheless the employer is viacariously liable for such conduct as established in the case of **************. The fact that the employer had no knowledge of the conduct will not, by itself, be sufficient to avoid liability. The common law principles of vicarious liability were extended in the case of Jones v Tower Boot Co. Ltd (1997) ICR 254 where the court found that the phrase 1 in the course of employment` should be interpreted in a broader sense. This meant that the any unwanted conduct of their employees could be deemed to be harassment regardless of whether it was connected with their normal duties or not.
In Chief Constable of Linconshire Police v Stubbs (1999) ICR 547 an employee who sexually harassed a colleague after work at an organised works party was deemed to have perpertrated the unwanted conduct in the course of hids employment within the meaning of S.41 of the DSA. An employer may also be liable for harassment perpertrated against employees by third parties such as customers and members of the public as was held in the case of Burton & anor v De Vere Hotels (1996) IRLR 596.
However under Ss.41(3) SDA, 32(3) RRA and 58(5) DDA, a reasonable steps defence is available to employers if it can be shown that he has taken reasonable steps to prevent the unwanted conduct from occurring. The existence and effective operation of anti discriminatory / harassment and trainng plicies can exist employers greatly in this regards. Employers should also be aware that failure to deal adequately with a complaint of harassment may of itself amount to a breach of implied terms thus entitling him or her to resign and claim constructive dismissal.
Futhermore employers mist not be seen to punish in any way an employee who has made a complaint of harassment if this is contrary to the SDA, RRA and/ or DDA.
The planned enactment of the Employment Act due for October 2004 should further enhance this protection for affected employees.
THE FUTURE
In respect of disability discrimination the UK Government has stated it`s intention to enact the necessary amendments to the DDA by December 2004 although the origonal dead-line set by the EU was December 2006. This would seem to indicate that the UK government appreciate the importance of and need for enhanced protection for such employees.
Indroduction of new anti-age discrimination laws planned for 2006.
Relevant Statutes ?
Felevant case law;
Incomes data services Ltd. IDS Brief; Employment Law and practise no 743. October 2003
Johnson v Unisys (2001) .. Lord Steyn stated that the need for contractual protection of employees, both express and implied is markedly greater than in the past owing to the increase in psychiatric injuries caused by workplace stress.
Horkulak v Cantor Fitzgerald International (2003 ) … harassment towards the employee was deemed substantial enough so as to represent a fundamental breach going to the root of the contract which justified the employee resigning and successfully claiming constructive dismissal. Judge awarded almost £1,000,000 in damages
Incomes data services Ltd. IDS Brief; Employment Law and practise no 729.
March( 2003)
Harassment is pernicious in its effects on employees as it can undermine confidence, cause stress and reduce workplace performance of all concerned.
Common definition of Harassment shared by Race discrimination Directive (no. 2000/43), the equal treatment framework directive ( 2000 ) . Equal treatment Amendment directive (no.2000/78)) and Equal treatment Amendment Directive
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