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Ask The Expert : What are the implications of the new act regarding bullying and harassment?

Question
I am a recently appointed HR Manager.  Could you give your interpretation of the new act regarding bullying and harassment and the implications for my organisation?

Answer
The Equality Act pulls together nine separate pieces of legislation into one single act, simplifying the law and strengthening it in important ways to tackle discrimination and equality. The Equality Act (EqA) offers employers some clarification of the law around harassment.  Its general definition provides that:

“A  harasses B, if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating B’s dignity OR creating an intimidating, hostile, degrading, humiliating or offensive environment for B”.   The ‘Relevant Protected Characteristics’ are:

Age; Race; Disability; Religion or belief; Gender reassignment; Sex; Sexual orientation

N.B.  Marriage and civil partnerships, pregnancy and maternity are not included, but claims may still be possible via direct discrimination provisions.

In a nutshell:  A single incident can amount to harassment, if it is sufficiently serious. The unwanted conduct needs simply to be ‘related to’ a protected characteristic.  The EqA protects employees against associative harassment i.e. based on someone else’s protected characteristic (e.g. C is disabled; A harasses B because of B’s friendship with C).  Employees are also protected against harassment based on the perception that they have a protected characteristic (e.g. A harasses B because he mistakenly perceives B to be of a particular religion)

Legal tests
In cases of alleged harassment, account must be taken of:
(a) whether a reasonable person would consider the conduct in question to be harassment and
(b) the individual’s own perception of the conduct.  In other words, it is envisaged that there will be an objective as well as a subjective element to the test of whether harassment has taken place.

Other possible claims  Legal claims arising from harassment or bullying may also include:

Tort of Negligence (where some form of injury results, e.g. a stress-related mental illness like depression)
Constructive Dismissal
Criminal Justice 1988
Public Order Act 1986
Malicious Communications Act 1988  (criminal) e.g. for cyberbullying
Health and safety
Protection from Harassment 1997

Protection from Harassment Act 1997
This was designed primarily to criminalise stalking and makes it a criminal offence to pursue a course of conduct which amounts to harassment of a person, or which causes a person to fear that violence will be used against them.  There are two levels of offence, and a ‘course of conduct’ must involve conduct on at least two occasions.

The penalties include up to six months in prison and/or a fine.
The Court of Appeal in Veakins v Kier Islington Ltd [2009] EWCA Civ 1288 says that, when deciding if conduct amounts to harassment for the purposes of the PHA, the primary focus should be on whether the conduct is “oppressive and unacceptable”, although the conduct should also be of the type that “would sustain criminal liability”.

Majrowski v Guy’s & St Thomas’s NHS Trust [2006] IRLR 695 is an important case dealing with principles of vicarious liability both generally (for breach of any statutory duty) and in connection with breaches of the Protection from Harassment Act 1997.  The Court of Appeal held, unanimously, that employers can be vicariously liable for breaches of statutory duty as well as breaches of common law obligations (subject to the wording of any given statute). This was confirmed by the House of Lords.

Malicious Communications Act 1988  This legislation is particularly relevant to the issue of cyber bullying.  Section 1 (b) provides that a person is guilty of an offence if he sends to another person any article or electronic communication which is “in whole or part, of an indecent or grossly offensive nature” and his purpose in sending it is that it should “cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated”.

The offence is also punishable, on summary conviction, by up to six months imprisonment and/or a fine.

This article’s expert was Fiona McLaren.

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