A High Court decision has raised the bar recently for successfully making claims under the Protection from Harassment Act (PHA). The ruling, which said that although employers are vicariously liable for harassment caused by two or more employees, their actions must amount to a coordinated course of conduct that was meant to aggravate the complainant. Given how substantial compensation awards for harassment can be, though, employers need to understand the law and ensure they have procedures ready to protect themselves from claims.

What is harassment?
Harassment occurs when an employee intends to violate another’s dignity through unwanted conduct on the grounds of protected groups involving race, religion, sexual orientation, age or disability. This is according to discrimination legislation, and could be in the form of creating an intimidating or degrading environment at work for the person. The PHA states that harassment arises when the person performing the conduct knows, or should know, that their actions amount to harassment. Victims are able to bring claims to the employment tribunal under discrimination legislation, or to the civil courts under the PHA.

Who is protected?
Individuals within groups that are protected by discrimination legislation, but also recently people associated with others belonging to such groups can claim for harassment. Under the PHA, anyone subject to a qualifying course of conduct (described below) can claim for harassment without belonging to a protected group, so long as the offender is aware that their actions amount to harassment.

What conduct amounts to harassment?
Unwanted conduct that occurs just once can be marked as harassment, for example, referring to an employee once in a racist manner, perhaps unintentionally. Harassment can also occur through targeting someone who does not belong to a protected group with suggestions that they do, for example, with homophobic jokes regarding a heterosexual employee. These both constitute harassment under discrimination legislation.

In order for conduct to constitute harassment under the PHA , however, it must be sufficiently oppressive, serious and unattractive to amount to a criminal offence punishable by a custodial sentence. Single incidents do not constitute as such, since there must be at least 2 occasions that are linked, if not carried out by the same person, for example a person acting at another’s bidding.

Can employers be liable for harassment by others?
Employers usually aren’t liable for third party acts, unless they are their authorised agent. Under the Sex Discrimination Act 1975, however, employers can be liable for failing to protect employees from such harassment. Under the PHA, employers are not liable for third party acts, but they can be vicariously liable both under the PHA and discrimination legislation.

What defenses do employers have?
Employers must show that they take “reasonably practicable” steps to avoid or prevent harassment. This is only under discrimination legislation though. Policies should explain that harassment won’t be tolerated, that employees maintain the right to complain if it occurs, and that action including dismissal, if necessary, will be taken against offenders.

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