Defining Sexual Harassment
The anti-discrimination statutes prohibit two forms of harassment in workplaces, one of which includes sexual harassment. These terms are defined as follows:
Harassment
Harassment occurs where a job applicant or employee is subjected to unwanted conduct on a
protected equality ground and where that conduct has the purpose, or the effect, of violating their dignity, or of creating for them an intimidating, hostile, degrading, humiliating or offensive environment.
Sexual harassment
Sexual harassment occurs where a job applicant or employee is subjected to unwanted verbal, non-verbal or physical conduct
of a sexual nature and where that conduct has the purpose, or the effect, of violating their dignity, or of creating for them an intimidating, hostile, degrading, humiliating or offensive environment.
It also occurs where a person is treated less favourably than others for having rejected, or submitted to, unwanted conduct of the kind just described.
Many forms of misbehaviour may amount to harassment; examples include:
- Physical conduct such as assaulting a person, sexually or otherwise, or making obscene gestures.
- Verbal conduct such as making racist, sexist, sectarian or homophobic remarks; making derogatory comments about a person’s age or disability; or singing songs of this nature.
- Visual or written material containing racist, sexist, sectarian, homophobic or other derogatory words or pictures (e.g. in posters, graffiti, letters, text messages or emails).
- Isolating a person (e.g. “sending them to Coventry”) or refusing to co-operate or help them at work or by excluding them from work-related social activities.
- Forcing a person to offer sexual favours, or to take part in religious or political activities.
- Intruding on a person’s private space by pestering, stalking or spying on them.
Unwanted conduct - Banter
One of the conditions necessary for behaviour to be deemed to be harassment is that it is
unwanted; or, in other words, the victim does not invite it or wish to be on the receiving end of it.
The kinds of behaviour illustrated in the preceding textbox are clearly of a kind that reasonable people would not want to be subjected to and it will usually be quite obvious that it is
unwanted. However, sometimes it may not always be so clear.
This confusion is more likely to arise in relation to so-called
banter, which the Concise Oxford Dictionary defines as being
“the playful and friendly exchange of teasing remarks”. If the exchange of such remarks is genuinely friendly between all who participate in it then it may be appropriate to conclude that it is
wanted, as opposed to
unwanted.
But, employers should always be careful not to readily excuse poor behaviour on the grounds that it is alleged by some of its participants to be merely a form of
wanted banter. A closer and objective examination of all the facts may disclose that it is actually unwanted by some and is not friendly or playful at all but is, in fact, hurtful; i.e. in other words, it is actually harassment.
Does It count if an employee sends jokes to work colleagues?
Tribunals recognise that workplace banter can and does occur, and where that behaviour is reciprocal, is taken in good spirit and is seen as unthreatening then it may not constitute harassment. However, it is also recognised that perceptions and circumstances must be taken into account. In the words of one tribunal ruling (in the case of Grimes –v- Unipork Limited, Fair Employment Tribunal, 1992):
‘What is banter for some may be intimidating and embarrassing for others. What is banter today may be dangerous tomorrow. There should be no place in the workplace for conduct which has the potential to disrupt the harmonious working environment.’
Purpose of the unwanted conduct
Harassment can occur even if the unwanted conduct is not intended to be offensive (see below). But, if a person intends to hurt another, then that will certainly be harassment. Recognising this can also be important for deciding what penalty it would be appropriate to impose, so it would be important to consider the question when investigating allegations of harassment. For example, intentional misconduct may justify sterner penalties, such as demotion or dismissal.
Unintended harassment – the effect of the unwanted conduct
Although the law states that harassment can occur even if the unwanted conduct is not intended to be offensive, oppressive or intimidating that does not mean that all incidents where offence is unintentionally given will necessarily be deemed to be harassment.
But, employers should always be careful not to readily excuse allegations of harassment on the grounds that the offence given is alleged by the perpetrator to be unintentional or accidental. Therefore, employers should not readily accept such excuses as:
“it was just banter”, for closer investigation may show that it is more sinister than that.
When investigating allegations of harassment, employers should carefully examine
all of the circumstances in which the incident or incidents occurred and try to decide whether, in the light of that, a reasonable person would conclude that the allegations amount to harassment (i.e. that they are offensive, oppressive, intimidating, etc.).
The test is an objective one, albeit that weight
must be given to the victim’s subjective perception of the matter. Therefore, when considering all of the circumstances in which the incident or incidents occurred, consideration must also be given to the victim’s perception of the matter.
Liability for harassment
If an employee is subjected to harassment in the course of their employment, they will likely look to their employer to stop it and to provide a remedy. As a matter of good practice employers should always try their best to protect their employees.
That does not necessarily mean, however, that the employer will be liable under equality law to compensate the employee for any harassment that they experience; although usually the employer will be so liable. Whether the employer is held liable depends on a number of factors, such as who committed the act(s) of harassment and in what circumstances, and on whether the employer took reasonably practicable steps to prevent it occurring.
(a) employer’s liability for their own acts of harassment
Where the employer, such as the owner of a small firm, himself (or, herself) commits the acts of harassment, then he (or, she) will be deemed to be liable for that.
(b) employer’s liability for the acts of their employees
All too frequently, acts of harassment are not committed by an employer themselves, but by their employees; e.g. a manager or a co-worker harassing one of their fellow team members. Nevertheless, the law will deem the employer to be liable for that harassment if it is carried out by the employee
in the course of their employment.
That term has a wide meaning and can include situations where the harassment occurs when the employees are working at the main business premises or at other work sites, or, even, remotely from home. In can also include harassment that occurs at work-related social events, such as at Christmas parties held in hotels or bars.
It is not an unlimited term, however, and the law recognises that in some cases harassment between co-workers could occur in circumstances that are wholly unconnected to the work and the workplace. In such cases, the employer would not be held liable for it.
In cases of doubt it would ultimately be for an industrial or fair employment tribunal to decide whether the circumstances in which the alleged harassment occurred are so closely connected to the work and the workplace that it can be said to have been done
in the course of the employment.
(c) employee’s liability for their own acts of harassment
The law does not place liability solely on an employer for unlawful acts of harassment committed by their employees in the course of their employment. Those employees are deemed to have aided and abetted their employers in committing those unlawful acts and are deemed to be jointly liable with their employer for them.
It means that the employee who commits harassment against a co-worker may also have to compensate his or her victim, either jointly with the employer and, sometimes, solely.
(d) employer’s liability for the acts of their agents
The law also deems an employer to be liable for any acts of harassment committed against one of their employees by an agent of the employer. An agent could be someone who is performing work or other tasks on behalf of the employer, such as an agency worker, or a business or occupational health consultant, or a security guard on the premises who is employed by a separate firm engaged by the employer to provide security services there.
That agent is deemed to have aided and abetted the employer in committing the unlawful acts and is deemed to be jointly liable for them too, meaning they are liable to compensate the victim.
(e) employer’s liability for the acts of customers and clients
With one exception (see below), anti-discrimination law does not deem an employer to be liable in law for any acts of harassment committed against their staff by people who are not the employer’s own employees or agents.
Such people are often called “third-parties” and include customers in a shop, bar, hotel or restaurant; patients in a hospital (or their visitors); residents in a care home (or their visitors); pupils in a school (or their parents); passengers on a bus or train.
The exception relates to acts of harassment that are prohibited by the
Sex Discrimination (NI) Order 1976; namely, sexual harassment and any other harassment that is related to sex or gender reassignment. The situations in which an employer will be held liable for such third-party harassment are-
- the employee is harassed in the course of her employment by the third-party
- the employee has been harassed by that third-party (or others) on two or more previous occasions
- the employer knows about the previous occasions, and
- the employer has failed to take reasonably practicable steps to prevent the employee from being harassed by the third-party
(f) taking reasonably practicable steps to prevent harassment
The law provides employers with a legal defence that may allow them to avoid liability for acts of harassment committed by their employees and, where relevant, third-parties where they can prove that they took
reasonably practicable steps to prevent the act(s) of harassment occurring. This basically requires an employer to continually follow and apply the kinds of good practice guidelines that are set out in this publication.