Harassment: an update and a look to the future

The Courts and Tribunals have been busy in recent weeks, finessing the law in relation to harassment, and employers will be pleased to hear that they have been taking a robust approach.  Sarah Lamont sets out the latest developments, and looks at how the Equality Bill is likely to change the law relating to harassment.

What is ‘harassment’?

Many employers probably felt quite harassed when it was confirmed, back in 2005, that employers could be liable for harassment of their employees in breach of the Protection from Harassment Act 1997 (‘the Act’).   Since then, several cases have considered the troublesome question of what type of conduct might amount to ‘harassment’ for the purposes of the Act.  This was looked at afresh last month, in Rayment v Ministry of Defence. In this case, the Court considered that the following conduct was sufficient to amount to ‘harassment’ under the Act:

• the Claimant being told that that an administrative error meant that she had no job and she must repay a month's salary;
• an inappropriate final written warning;
• the decision to discharge the Claimant from the army whilst on stress-related sick leave; and
• the re-posting of pornographic pictures in the restroom after the Claimant had removed them.

The EAT held that this conduct was "oppressive and unacceptable" and, therefore, satisfied the definition of ‘harassment’ for the purposes of the Act.  It should be noted, however, that for harassing conduct to come within the Act, it must also be of a sort that may “sustain criminal liability” (as defined in Veakins v Kier Islington Limited.)

‘Aiding and abetting’ harassment

In May & Baker Ltd t/a Sanofi Aventis Pharma v Okerago, the Employment Appeal Tribunal (‘the EAT’) found that an employer was not liable for the discriminatory acts of an agency worker by ‘aiding and abetting’ his discrimination.  The Claimant alleged that an agency worker engaged by the Company had told her to ‘go back to her own country’, and further alleged that the Company had ‘aided’ the agency worker by engendering an environment in which such conduct could take place.  The EAT rejected this argument. It held that merely allowing an environment to exist is not sufficient to amount to the ‘co-operation or collaboration’ in harassment, which would be required for this type of claim to succeed. 

Whilst this is good news for employers, it does not negate the need for robust equal opportunities polices and procedures.  Employers should bear in mind that they may still be vicariously liable for acts of discrimination by their employees and agents, regardless of whether or not the employer ‘aided’ or sanctioned the discrimination.

Note also that harassment by a third party (i.e. someone who is not an employee or an agent of an employer) is not usually actionable, except in cases of sexual harassment.  An employer will be liable if it fails to take reasonable steps to prevent any third party from harassing an employee but only where the employer knows the employee has been harassed by a third party, in the course of her employment, on at least two previous occasions.

Motivation of a harasser

The EAT case, Commissioner of Police of The Metropolis and another v Osinaike, will warm the cockles of many employers’ hearts.  The EAT confirmed that simply showing that:

• conduct had been unreasonable or unfair was not, by itself, enough to trigger the transfer of the burden of proof (i.e. a claimant would have to show more than this for a Tribunal to require an employer to prove that they had not been discriminatory); and
• neither was a simple ‘difference in race’ (in the absence of any other evidence) sufficient to lead to an inference of discrimination.

So, the burden of proof will not shift to an employer to prove that they have not been discriminatory, until an Employment Tribunal has considered the reasons why an employer behaved as it did.

How will the Equality Bill change the law on harassment?

In short, the Equality Bill will streamline and harmonise the law relating to harassment in the employment field:

• liability for third-party harassment will be extended (it is currently restricted to sex discrimination cases, as set out above);
• liability for harassment will be harmonised across most of the various strands of discrimination law; and
• liability for harassment will be extended to harassment based on perception and association (e.g. harassment because an employee is thought to be gay will be covered, regardless of whether that employee actually is, or is not, gay).