The discrimination legislation has been drafted to ensure that it outlaws discrimination in all aspects of employment. It is therefore unlawful for an employer to discriminate:
- in its recruitment practices, including where and how jobs are advertised, which selection criteria are used, how interviews are conducted and how the decision to appoint is made (the issue of how to avoid discrimination in recruitment is covered in the starting the relationship section of this Guide);
- in the terms on which it offers employment;
- in the way it decides which of its employees to promote, transfer or train, and on what terms;
- in the way it provides benefits, facilities and services to its employees;
- by subjecting an employee to any form of disadvantage in employment;
- by subjecting an employee to harassment (discussed further below);
- in deciding who to dismiss, including how employees are selected for redundancy; and
- by subjecting a former employee to any form of disadvantage or harassment, if the disadvantage or harassment arises out of and is closely connected to the employment relationship.
Harassment on discriminatory grounds
If an employee is harassed at work, that may be a breach of discrimination law if the grounds for the harassment are related to sex, race, age, religion, sexual orientation, disability or gender reassignment. The sex discrimination legislation also prohibits sexual harassment (that is, unwanted conduct that is sexual in nature) and makes it unlawful to penalise a person for rejecting or submitting to harassment. If one employee harasses another during the course of employment, the employer is legally liable for that conduct, unless it has taken all reasonably practicable steps to prevent it happening (employer liability for discrimination). With regard to an employee harassed in the course of her employment by third parties, such as a customer, the employer will be liable unless it has taken reasonable practicable steps to prevent the third party acting in that way and the employer knows the employee has been subject to harassment on at least two previous occassions.
In order to amount to unlawful harassment under the discrimination legislation, the conduct at issue must be unwanted by the subject, and it must be committed on one of the prohibited grounds. Either the purpose or the effect of the conduct must be to violate the individual’s dignity, or to create an intimidating, hostile, degrading, humiliating or offensive environment for him or her. Conduct is viewed as having the effect of violating a person’s dignity or tainting his or her environment only if it should reasonably be considered as having that effect, taking into account all the circumstances, including the views of the subject.
Other harassment and bullying
Harassment that is not on one of the prohibited grounds is not unlawful discrimination. Therefore, a person who is simply harassed or bullied by an aggressive manager has no remedy under discrimination law. However, an employer that failed to deal with this type of harassment or bullying could find itself facing an unfair constructive dismissal complaint. An employee who is bullied can resign and claim that, by not tackling the issue, the employer has broken its implied contractual obligation to maintain the relationship of trust and confidence that is essential to the employment relationship (constructive dismissal).
Further, an employer will be liable to pay compensation under the Protection from Harassment Act 1997 to anyone harassed by its employee, if the harasser pursued a course of conduct during the course of his or her employment that he or she knew, or ought to have known, amounted to harassment. If an employee is so badly bullied or harassed that he or she suffers a foreseeable physical or psychiatric illness or injury as a result, there is also a possibility of the employee claiming compensation for negligence, on the basis that the employer failed to meet its duty to take reasonable steps to safeguard the employee’s health and safety.
It is worth noting that the normal rule that an employee must pursue a grievance before bringing a claim to an employment tribunal (dealing with grievances) does not apply if the employee has been harassed and has reasonable grounds for believing that lodging a grievance would lead to further harassment.
Companies considering what steps to take to prevent harassment at work may find it useful to refer to the bullying and harassment policy (model documents) and the grievance section.