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Wake-up call: How to deal with unlawful harassment

20 January 2011
Wake-up call: How to deal with unlawful harassment

It isn't just someone's race, sex or disability that is protected by the Equality Act. If an employee is bullied by a colleague or even a guest because it is percieved that they may have a certain characteristic, they can be considered to be discriminated against. Legal expert Linda Stewart explains

THE PROBLEM
An employee in my hotel business has recently raised a grievance against me, claiming he resigned after "homophobic abuse". However, it is widely known that he has a wife and children and isn't gay, and the comments made by co-workers were not meant seriously. Could this claim be successful?

THE LAW
An employee doesn't have to be gay to be protected against homophobic abuse at work but whether a harassment claim will succeed depends of course on the particular circumstances and is ultimately for an employment tribunal to decide.

In 2008, the Court of Appeal ruled that Stephen English, a married man with children who was not gay, had suffered unlawful harassment on grounds of sexual orientation after being tormented by colleagues who called him "faggot".

They knew he was married and English accepted that nobody really believed he was gay; but the homophobic abuse, which had begun when his colleagues discovered he had attended boarding school and now lived in Brighton, drove him to resign.

English brought a claim of sexual orientation harassment against his former employer, Thomas Sanderson Blinds, under the Employment Equality (Sexual Orientation) Regulations 2003. He argued that, even though he wasn't gay, his colleagues had used "homophobic" language to harass him, which he found humiliating and had turned the workplace into a hostile and offensive environment for him.

The employment tribunal and Employment Appeals Tribunal decided that "on grounds of sexual orientation" meant on grounds of his sexual orientation and dismissed the claim but the Court of Appeal disagreed and ruled in favour of English.

In the Judgment of Lord Justice Sedley: "It did not matter whether he was gay or not. The case would have been exactly the same if Mr English had elected, for whatever reason, to remain silent about his actual sexual orientation - for example, because he took the principled position that it was nothing to the point. And the same would be the case if he were actually gay or bisexual but preferred not to disclose it."

The Equality Act 2010 replaced the 2003 regulations on 1 October 2010, modifying the law of harassment to align it with the EU Directive (adopting the approach taken by the Court of Appeal in the case of Mr English).

The act not only prohibits homophobic abuse but any "unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that individual". Sexual harassment and treating someone badly for submitting to, or rejecting harassment is also unlawful. Employees who are offended by jokes or banter related to age, disability, gender reassignment, race, religion or belief, sex or sexual orientation may pursue employment tribunal claims.

EXPERT ADVICE
Employers will be liable for harassment by their employees unless they take reasonable steps to prevent it. Harassment related to a protected characteristic is not limited to what is said or written - it includes imagery, graffiti, physical gestures and facial expressions, jokes and pranks or just giving someone "the silent treatment".

Employers should make it clear to staff that harassment is unacceptable and have procedures in place for dealing with complaints which includes taking disciplinary action.

CHECKLIST
Employers are advised to:

â- Make sure managers are trained and supported to deal with harassment.
â- Give staff a named contact and a route to follow should they ever experience harassment.
â- Take harassment complaints seriously, investigate complaints promptly and take appropriate action.

BEWARE!
Under the Equality Act 2010 an employer may also be liable if an employee is harassed by a third party. For example, a hotel customer or supplier, where the employer knows that the employee has been subjected to harassment on at least two other occasions (by the same or a different customer or supplier), but has failed to take reasonable steps to prevent it.

CONTACT
Linda Stewart is a partner at Simpson Millar
Linda.stewart@simpsonmillar.co.uk

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