REWARD
Harassment – are employers aware of the less obvious forms of harassment?
Danny Done, managing director of Portfolio Payroll , explains what harassment is and provides and advises employers in relation to some of the less obvious forms it can take
W hen you think about harassment you might consider that it’s just related to spoken words or physical actions, but harassment can occur in a wide range of situations even when there’s no intention to cause any offence. Harassment is a term employees may use to describe behaviour without realising there’s a specific legal definition as to what amounts to harassment under the Equality Act 2010. It’s important, therefore, to consider that legal definition in the first instance. To amount to harassment, the behaviour must be unwanted conduct and it must relate to someone’s: l disability l race l religion l pregnancy / maternity
hearing to which she brought along her mother. In accordance with its own policies, the employer didn’t allow her to be accompanied by her mother, as the policy only allowed a fellow employee or a trade union representative to accompany an employee to a disciplinary hearing. This appears quite straightforward, so, what was the problem? In this case (Crew and Mason v Three Milestone Education Ltd), the employee had been told when she was suspended that she wasn’t allowed to contact fellow employees. As such, she couldn’t arrange for any employee to accompany her to the disciplinary hearing. “Harassment is a term employees may use to describe behaviour without realising there’s a specific legal definition as to what amounts to harassment under the Equality Act 2010” The employee, therefore, brought her mother along with her. The employee was disabled by reason of depression and anxiety, and the employment tribunal (ET) found that failing to allow her mother to accompany her to the disciplinary hearing was the unwanted conduct which had the effect, albeit unintended, of exacerbating an already intimidating environment. The tribunal found that it amounted to harassment related to her disability. In another case, harassment was found to have occurred when an employee
returned to work after the birth of her second child and needed to express milk during the day. The employee repeatedly asked for a private space to do this and, despite having been provided with one upon her return to work following the birth of her first child, her employer failed to do so on this occasion. Such a failure meant she was forced to express milk in either the toilets, or in her car, where she was at risk of being seen. This harassment claim, in Mellor v MFG Academies Trust, was successful as it was found that forcing her to express milk in the toilets or the car created a degrading and humiliating environment which was related to her sex. Harassment can occur even before an individual is an employee, which is what happened in the case of Wilton v Capstick Brothers Ltd t / a Fireaway Pizza. Wilton had various disabilities, some of which left her with selective mutism, and as a result, she was non-verbal. A delivery driver position was available at Fireaway Pizza, and she contacted them to ask via WhatsApp whether she would be able to use an e-bike, which could go up to 28 miles per hour, because she didn’t drive due to her disabilities. Wilton chased up a response and submitted a subject access request, to which she received a response from the respondent which stated, “who are you?” along with a laughing emoji. This caused significant offence to Wilton, who thought she was being laughed at. The ET found that it was reasonable for the message to have affected her to such an extent that she ended up in A and E and found that this message was disability- related harassment. Even emojis can amount to harassment between two parties who have never met face to face. Harassment can take many different forms, so it’s important employers review their policies, training and overall culture to ensure they take a zero tolerance approach to any form of harassment. n
l age l sex l sexual orientation l gender reassignment, or l marriage / civil partnership.
These are ‘protected characteristics’. The employee who alleges they’ve been subjected to the unwanted conduct, however, doesn’t necessarily have to possess that protected characteristic themselves, but the unwanted conduct must still relate to it. The unwanted conduct, related to a protected characteristic, must also have the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. It doesn’t matter if the behaviour wasn’t intended to have that effect, if it does then that could amount to harassment. What are some less obvious examples of harassment? When it was alleged that a teaching assistant had drugs on school property, following her suspension and an investigation, she was invited to attend a disciplinary
| Professional in Payroll, Pensions and Reward | October 2023 | Issue 94 38
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