Harassment and the Equality Act 2010: overview

Sarah-Marie Williams and Alice Sweet of Clyde & Co LLP begin a series of articles on the impact of the Equality Act 2010 on the law relating to harassment, with an overview that looks at how the Equality Act 2010 widens the definition of unlawful harassment and extends liability on employers for harassment by a third party, which is currently limited to sexual harassment, to other discrimination strands. 

Equality Act 2010

The Equality Act 2010 received Royal Assent on 8 April 2010. When it comes into force, the Act will bring together the existing strands of anti-discrimination legislation with the aim of adopting a single approach to the different strands. 

The majority of the Act is due to come into force on 1 October 2010 (see the Government Equalities Office website) although a commencement order bringing into effect its main provisions has not yet been published. The Government has already made commencement orders enabling subordinate legislation to be enacted and guidance to be issued to support the Act and has made other orders to supplement the Act (see Single Equality Act introduced (1 October 2010) in the XpertHR legal timetable).

As well as harmonising many aspects of equality legislation, the Act brings about a number of changes to the law, including changes and new provisions in respect of harassment.

Harassment

The current discrimination legislation provides a statutory definition of harassment. In general terms, harassment occurs where an individual engages in unwanted conduct that has the purpose or effect of violating another individual's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. This part of the definition of harassment is largely unchanged by the Equality Act. The perception of the victim and other circumstances continue to be relevant in determining whether or not conduct amounts to harassment.

Also largely unchanged from the existing provisions, harassment includes unwanted conduct of a sexual nature, or that is related to gender reassignment or sex, where the victim suffers less favourable treatment because of his or her rejection of, or submission to, that conduct.

The Equality Act introduces the concept of "protected characteristics", to refer to all of the existing discrimination strands. The protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. However, s.26 of the Act prohibits harassment only in relation to "relevant protected characteristics", which do not include marriage and civil partnership or pregnancy and maternity.

Under the Race Relations Act 1976, although there is specific protection against harassment on the grounds of race, or ethnic or national origins, harassment on the grounds of colour or nationality is unlawful only if the individual is subjected to less favourable treatment on the grounds of colour or nationality and is subjected to a detriment. Under the Equality Act, this inconsistency is addressed and colour and nationality are included in its provisions.

Section 26 of the Equality Act 2010 defines harassment as "unwanted conduct related to a relevant protected characteristic". This definition replaces the words "on grounds of" (a characteristic), in most of the discrimination strands, with "related to" (a characteristic), which is intended to be a wider test. It is arguable that the connection between the conduct and the relevant characteristics do not need to be as close for harassment to be shown. It is clearer that those offended by conduct that is not necessarily directed at them will also be protected.

Association and perception

The new definition in s.26 of the Act is intended to protect employees from harassment related to a protected characteristic that is based on a perception of an individual or an individual's association with someone with a relevant protected characteristic.

The current position in respect of harassment because of perception and association is inconsistent. The legislation prohibiting harassment differs according to the various Acts and Regulations covering the different discrimination strands. For some of the strands, harassment where the person is perceived to have a particular characteristic, or where he or she is associated with another person with the characteristic, is prohibited. However, the legislation relating to sex, disability and gender reassignment, does not protect individuals from harassment resulting from the perception of, or association with, a characteristic. The wording of the legislation makes clear that only harassment that is due to the victim's own characteristics is covered.

In EBR Attridge Law LLP and another v Coleman (No.2) [2010] IRLR 10 EAT, the Employment Appeal Tribunal (EAT) held that the Disability Discrimination Act 1995 (DDA) should be construed so as to prohibit associative discrimination. A strict interpretation of the wording of the DDA limits any recourse in respect of harassment to the disabled person him- or herself. Coleman involved a mother who alleged that she was discriminated against and harassed due to the fact that she cared for her disabled child. Following a referral to the European Court of Justice (Coleman v Attridge Law and another [2008] IRLR 722 ECJ), the EAT held that the DDA should be interpreted so that it covers direct discrimination and harassment based on a third party's disability.

To address inconsistencies in this area, and in light of Coleman, the Equality Act intends to extend the prohibition against associative and perceptive direct discrimination and harassment to cover all relevant protected characteristics (ie race, sex, gender assignment, disability, sexual orientation, religion or belief and age). This includes the characteristics for which there is currently no clear prohibition against associative and perceptive harassment (namely, sex, disability and gender reassignment). Therefore, the circumstances in which employees will be able to claim unlawful harassment where the unwanted conduct is related to a relevant protected characteristic of someone with whom they are associated, or where they are perceived to have the protected characteristic, will be wider.

Harassment by a third party

The harassment provisions in the Sex Discrimination Act 1975 (SDA) are wider than those for the other strands of discrimination. Under s.6(2B) to (2D) of the SDA, which came into effect on 6 April 2008, employers are liable for harassment claims if they fail to prevent repeated harassment of employees by third parties. The Equality Act 2010 extends this protection in relation to the relevant protected characteristics (ie not including marriage and civil partnership or pregnancy and maternity).

Under s.40, employers will be liable for harassment if they fail to protect their employees from persistent harassment by people outside the employment, for example customers or suppliers. More specifically, an employer will be liable if it knows that an employee has been subjected to harassment by a third party in the course of employment on at least two other occasions and it has not taken reasonably practicable steps to prevent the harassment occurring again. This is known as the "three strikes rule". Therefore, the employer will not be liable in circumstances where the employee has been harassed only once or twice by a customer or supplier, even if that customer or supplier is known to have harassed other employees in the past. The employer will be liable if it has been put on notice that the employee is at risk (and it has therefore had the opportunity to act to stop the harassment) and the employee is harassed on a third occasion. The employer can still be liable where the third party that harasses the employee is different on each of the three occasions.

Conclusion

Harassment in the workplace is a difficult area to manage. The changes and new provisions in the Equality Act in respect of harassment are far reaching and are likely to lead to an increase in the number of harassment claims. How quickly the effect of the changes will be felt remains to be seen.

Next week's topic of the week article will be a case study on harassment and will be published on 13 September.

Sarah-Marie Williams (Sarah-Marie.Williams@clydeco.com) is a legal director, and Alice Sweet (Alice.Sweet@clydeco.com) a trainee solicitor, at Clyde & Co LLP.

Further information on Clyde & Co LLP can be accessed at www.clydeco.com.