Harassment in the United Kingdom is a topic which in the past couple of decades has been taken increasingly seriously and has been the subject of a number of pieces of major legislation. This article is intended to outline the procedure behind making and investigating harassment claims, primarily in the workplace.
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Though racial and sexual discrimination have been unlawful under the Race Relations Acts (RRA) and the Sex Discrimination Act (SDA) respectively, it is only comparatively recently that specific legislation has defined harassment specifically as unlawful.
Because of the rise recently in awareness of the issues involved in harassment, recent trends have shown significant rises in the number of people making claims of harassment at Employment Tribunals. If the complaint is serious, high damages may be awarded against the Employer, so it can be seen that it is important for the Employer to take seriously any allegation of harassment at an early stage and take steps to quickly resolve it.
There is also legislation in place to be able to deal with discrimination, and this legislation is distinct to that provided under the SDA and RRA.
Under the Protection from Harassment Act 1997:
"A person must not pursue a course of conduct
Harassment also occurs when, on the grounds of race, disability, sex, sexual orientation, belief or religion, an employer - or their agent such as another employee or a manager - engages in unwanted conduct which has the purpose or effect of violating an individual's dignity or creating an interrogating, degrading, hostile offensive or humiliating environment for the employee in question. This is wide spectrum, and covers all types of harassment.
Such actions can be:
In addition, while the conduct must be unwanted by the recipient, it does not necessarily have to be that the harasser has a motive or an intention to harass. So it is still harassment even if the harasser does not know there is harm caused by their actions.
An employer is liable, as is the case for many other acts, for the actions of their employees during the course of employment. Though it would be relatively easier to prove that a manager or supervisor to the recipient could be guilty of harassing "during the course of employment", it may require more proof if the harasser is in a subordinate position.
Employers can avoid liability for discrimatory harassment if they can prove that they took such steps that were reasonably practical to prevent harassment from occurring.
However, employers cannot use this defence to a claim of harassment under the Protection from Harassment Act 1997, under which they will have vicarious liability for the actions of their employees.
The best way an Employer can avoid complaints of harassment is by ensuring that harassment does not occur in the first place. The first step is to have in place an Equal Opportunities policy which, amongst other things, defines harassment and makes it clear to Employees that they should not allow it to occur. In addition, Employees must be made aware of these policies, education about them provided, and a set of consequences if they still harass made clear to them.
Employees should certainly be made aware that the Employer takes seriously any claim of harassment, and that such actions would be considered an act of Gross Misconduct.
Complaints of harassment can, by their nature, be disruptive to the workplace. If a complaint of harassment is brought up by an employee, the Employer should consider whether to deal with it either formally or informally. Usually the recipient of the harassment will be asked which approach they would like to see.
If an informal approach is deemed necessary, then the alleged harasser should be informed that their behaviour is inappropriate and is causing distress. They should be warned and told that the matter will be kept under review, and that any further action deemed to be harassment may result in further action being taken against them. At all stages the Employee who complained of the harassment should be kept informed of the proceedings, and be told that if any further harassment occurs they should report it immediately so that further action can be taken.
If either the alleged harassment is too severe, or the recipient wishes a formal approach to be taken, a disciplinary procedure should be taken as follows:
If there is an outcome that harassment took place, then the Employer should consider what penalty to impose against the harasser. This may be outright dismissal for Gross Misconduct, or in some circumstances they may be transferred away to another office or department where they will not come into contact with the complainant. If the harassment is deemed to have been of a less serious nature, then the issue of a final written warning to the harasser may be appropriate.**
Section 40 of the Administration of Justice Act 1970 creates the offence of harassing a contract debtor.
Section 4A, inserted by the next mentioned Act, creates the offence of intentional harassment, alarm or distress.
Section 5 creates the offence of harassment, alarm or distress.
This Act provides means whereby intentional harassment, alarm or distress is a criminal offence. This makes all forms of harassment illegal, punishable on conviction by a six month jail term or a £5,000 fine. It is necessary to prove that the harasser's actions were intentional, and that someone was actually harmed by their actions.
This Act was primarily created to provide protection against stalkers, but it has been used in other ways.
Under this Act, it is now an offence for a person to pursue a course of action which amounts to harassment of another individual, and that they know or ought to know amounts to harassment. Under this act the definition of harassment is behaviour which causes alarm or distress. This Act provides for a jail sentence of up to six months or a fine. There are also a variety of civil remedies that can be used including awarding of damages, and restraining orders backed by the power of arrest.
Employers have vicarious liability for harassment by their employees under the Protection from Harassment Act 1997, (see Majrowski v Guy's and St Thomas’s NHS Trust). For employees this may provide an easier route to compensation than claims based on discrimination legislation or personal injury claims for stress at work, as the elements of harassment are likely to be easier to prove, the statutory defence is not available to the employer, and it may be easier to establish a claim for compensation. Also as the claim can be made in the County Court costs are recoverable and legal aid is available.
In Scotland the Act works slightly differently:
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