Created on: 02 Aug 2023 | Last modified: 09 Nov 2023
Harassment is defined as:-
“Unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”.
“Unwanted conduct can include any kind of behaviour, including spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour”.
For behaviour to count as harassment in equality law, it has to be one of three types;
unwanted behaviour related to the protected characteristics (listed previously)
less favourable treatment because of submission to or rejection of previous sex or gender reassignment harassment.
This is related to age, disability, race, sex, gender reassignment, religion or belief or sexual orientation.
‘Related to’ a protected characteristic covers situations:
where the harassment is related to the worker’s own protected characteristic or
where a person is abusive to other workers generally, but a particular worker feels harassed because they have a protected characteristic.
where the worker who is harassed does not have the relevant protected characteristic. For example, a worker might be incorrectly perceived to have a characteristic or they may be associated with a person who has a characteristic, such as a family member. Similarly, a worker is known not to have the protected characteristic, but nevertheless is subjected to harassment related to that characteristic.
Paula is disabled and is claiming harassment against her principal teacher after she frequently teased and humiliated her about her disability.
During a training session attended by male and female staff, a male trainer directs a number of remarks of a sexual nature to the group as a whole. A female member of staff finds the comments offensive and humiliating to her as a woman. She can claim harassment even though the remarks were not specifically directed at her.
A member of staff is subjected to homophobic banter and name calling, even though his colleagues know he is not gay. Because the form of the abuse relates to a protected characteristic, i.e. sexual orientation, this could amount to harassment related to sexual orientation.
The unwanted behaviour does not have to be specifically aimed at the person who finds it violates their dignity or creates for them an intimidating, hostile, degrading, humiliating or offensive environment.
A white teacher in a staffroom where most of the other teachers are also white finds the habitual racist comments of another member of staff also creates a hostile and intimidating environment for them. This may amount to harassment.
It may also be harassment where the unwanted conduct is related to the protected characteristic, but does not take place because of the protected characteristic.
A male teacher has a relationship with his female principal teacher. On seeing him with another female colleague, the principal teacher suspects he is having an affair. As a result, the principal teacher makes his working life difficult by continually criticising his work in an offensive manner. The behaviour is not because of the sex of the male teacher, but because of the suspected affair, which is related to his sex. This could amount to harassment related to sex.
Sexual harassment takes place when a person does something of a sexual nature (which might be verbal, non-verbal or physical) which has the purpose or effect of:
violating a person’s dignity, or
creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
‘Of a sexual nature’ can include unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.
Women are overwhelmingly the victims of sexual harassment and the harasser is usually male. However, harassment can happen to men by women, to women by women or to men by men. The intention of the harasser is not important, the effect is.
Sexual harassment is about power, asserting superiority and exerting control.
Any incident of sexual assault, rape or ‘stalking’ is a criminal offence and should be reported to the police.
This type of harassment is best illustrated by examples.
A principal teacher propositions one of his department members, she rejects his advances and is then turned down for promotion which she believes she would have got if she had accepted her line manager’s advances.
This kind of harassment also applies where the person who treats the individual badly is someone different from the person carrying out the original harassment.
An employer can be held responsible for harassment of a worker by someone who doesn’t work for them. This is sometimes called ‘third-party harassment’.
The employer will become legally responsible if they know that their worker has been harassed by someone who does not work for them at least twice before but they have failed to take appropriate action to protect the worker from further harassment. It does not have to be the same person harassing the worker on each occasion.
An employer is aware that a female teacher has been sexually harassed on two separate occasions by two different parents. Once the employer has been told or has found out about the first two occasions, they will be liable for a third act of harassment towards the same teacher, if they have failed to take reasonably practicable steps to prevent further harassment. This will be the case even if the third act of harassment is committed by an unconnected parent.
The following should be borne in mind;
The word ‘unwanted’ means ‘unwelcome’ or ‘uninvited’. This does not mean that express objection must be made to the conduct before it is considered unwanted. A worker does not need to make it clear in advance that those offensive or stereotyped remarks are unwanted.
A teacher of Indian ethnic origin has lived in Scotland all her life. After she gives notice that she intends to resign from her job, the principal teacher comments, ‘We will probably bump into each other in future, unless you are married off in India’. This remark is unwanted conduct related to her ethnic origin which, though unintended, has the effect of violating her dignity. It is reasonable for her to take what was said as a stereotypical view of Indian women and to be offended.
In some situations, a woman may need to make clear that unexceptional behaviour is unwanted, before it can be considered harassment.
A woman is asked for a drink after work on a few occasions by her colleague. She makes an excuse and says she cannot come. On the third occasion, she explicitly states that she does not want to go for a drink with him at all. Her colleague continues to ask her. His continued invitations after she has stated clearly that she does not want to go out with him may be harassment. On the first few occasions, before this was clear, his invitations are unlikely to be considered harassment.
A serious one-off incident may also amount to harassment.
If the person carrying out the unwanted behaviour actually intends to violate the other person’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for them, this will of itself amount to harassment and you will not have to consider the effect on the individual.
Harassment can come from colleagues, management, students and pupils, members of the public or parents. It can happen because of the sex of the victim, race, ethnic origin or nationality, age, sexual orientation, religious, political or trade union beliefs and activities, physical or mental ability or disability.
People should not be discriminated against or victimised because of trade union membership or for supporting people who make complaints about harassment.
All forms of harassment are unacceptable for whatever reason.
People who experience harassment may feel guilty, humiliated and too embarrassed to complain. They will also experience anger and other emotions. Stress may lead to loss of sleep, headaches and other physical symptoms. In turn this may lead to increased absences, loss of performance or interest in work which will have a long term effect on the person as well as their colleagues. (See also section on ‘Effects of Bullying’.)
It is important to establish the origins of workplace stress. These can be rooted in unacceptable workload, deadlines or targets; in poor, untrained or over stretched managers or in a workplace culture which encourages blame or is subject to constant and unnecessary change.
If harassment is allowed to continue there may be formal complaints and, therefore, heavy costs involved.