Harassment and the Equality Act 2010: case study 1

Arabella Ure of Clyde & Co LLP continues a series of articles on the impact of the Equality Act 2010 on the law relating to harassment, with a case study that looks at how the law protects employees from harassment at work, both before and after the implementation of the Act. The Equality Act 2010 harmonises the provisions relating to harassment for the different strands of discrimination. Its intention is also to widen protection against harassment.

Worldwide Luxury Travel Ltd is a travel business that organises exotic foreign holidays. It has 30 employees, including five full-time employees in its call centre. One of the call centre employees, William, has been subjected to taunts and unkind comments by his colleagues about his sexuality. His colleagues do not really think that he is gay, but they find it funny to tease him anyway. Their grounds for doing so are that he often wears a pink shirt and does not like football.  Notwithstanding the fact that he is not gay and is in a long-term relationship with his girlfriend, William finds the situation upsetting as the comments are very unkind. He submits a grievance and is considering making a claim against the company for discrimination on the grounds of sexual orientation.

Given that William is not gay, could the company be vulnerable to a successful claim of discrimination?

Yes, the company could be vulnerable to a successful claim of discrimination. The Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661) prohibit harassment in the workplace on the grounds of sexual orientation.

Following the Court of Appeal decision in English v Thomas Sanderson Blinds Ltd [2009] IRLR 206 CA, employees are protected under the Regulations from unwanted homophobic banter, regardless of whether or not they are gay. Regulation 5 of the sexual orientation Regulations protects individuals who are being subjected to harassment "on grounds of sexual orientation". Overturning the Employment Appeal Tribunal (EAT) decision and giving a very broad interpretation of the wording of the Regulations (to bring the interpretation into line with the Equal Treatment Directive (2002/73/EC)), the Court of Appeal held that the bullying suffered by the employee in this case could be deemed to be on the ground of sexual orientation even though he was not gay and his tormenters knew that he was not.

Worldwide Luxury Travel Ltd should address William's complaints seriously. The company should carry out a full investigation. If it finds that William's complaints are well founded, it should ensure that the harassment is stopped immediately and consider taking disciplinary action against the perpetrators. The company should also consider instigating training to ensure that managers are aware of what type of behaviour is, and is not, acceptable, and so that they can recognise situations like that endured by William, before they escalate into a potential claim.

Under the Equality Act 2010 (the majority of which is due to come into force on 1 October 2010), the relevant wording for establishing whether or not harassment comes within the protection of the legislation will be changed from harassment "on grounds of sexual orientation" to harassment "related to a relevant protected characteristic", which includes sexual orientation. This change will not affect the protection afforded to William in this situation. The legislation will continue to protect him from his colleagues' taunts. Also, the Act will harmonise the harassment provisions for sexual orientation with those for the other discrimination strands.

In another part of the business, one of Worldwide Luxury Travel Ltd's secretaries, Jane, has a child with severe learning difficulties. She sometimes needs to take time off work to sort out problems with his school or to look after him. Her colleagues often make insulting comments about her child. She feels that they are uncooperative at work and deliberately fail to give her all the information that she needs to do her job, because they resent sometimes having to cover her work. She is very upset by this and complains to the HR department. Could Jane bring a claim under the Disability Discrimination Act 1995 (DDA) because of the treatment that she has suffered, which has arisen from her son's disability?

A strict interpretation of the wording of the DDA gives no protection against harassment because of an association with someone with a disability. Section 3B of the DDA protects individuals against harassment only where "a person subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability" he or she engages in harassing conduct. (This differs from some of the other discrimination strands, for which, to be prohibited, harassment is not restricted to harassment on the grounds of the individual's own characteristics.)

However, in EBR Attridge Law LLP and another v Coleman (No.2) [2010] IRLR 10 EAT, the EAT held that the DDA should be interpreted so as to prohibit associative discrimination (see Harassment and the Equality Act 2010: overview in this series for more details). As a result, Jane could bring a claim under the DDA.

The Equality Act 2010 will harmonise the law in relation to the different strands of discrimination. Under s.26 of the Act, a person may be found to be harassing another person if he or she engages in unwanted conduct that "has the purpose or effect of violating [the person's] dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for [that person]". The conduct need only be "related to a relevant protected characteristic", which is a wider definition than that under the DDA, and will not necessarily be limited to the protected characteristic of the harassed person. Disability is a "relevant protected characteristic" as are age, gender reassignment, race, religion or belief, sex and sexual orientation.

Given that Jane could bring a claim of harassment as a result of her treatment by her colleagues, because of her association with her disabled son, the company should take her complaints seriously. It should try to ensure that the harassing behaviour and the comments are stopped and, as in William's case, it should consider taking disciplinary action against the perpetrators. The company should also consider training its managers to recognise, and deal with, harassment.

Maureen, the company's financial administrator, has a disabled husband. She is very discreet about her personal life so no one in the company knows this. Nevertheless, she is offended and upset by the way that the other employees treat Jane as she sympathises with her. Maureen thinks there is nothing she can do about the situation and that there is no point in complaining as the remarks and behaviour are not directed at her and she is not the one being harassed. Is she right?

No, Maureen is not right. Just because the harassing behaviour is not directed at her does not mean that she does not have a potential claim of discrimination herself. The actions of Jane's colleagues towards Jane, which relate to a protected characteristic (ie disability), may also amount to a violation of Maureen's dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment for her. Therefore, she may be protected under the legislation. The definition of harassment under the Equality Act 2010, which covers conduct "related to a relevant protected characteristic", makes it clearer that those who are offended by conduct that is not directed at them will be protected.

Therefore, if Maureen complains that she is offended or upset by the way that Jane is treated, the company should take decisive action and implement an investigation, just as it should if Jane makes a complaint herself.

Next week's article will be a second case study, which will look at the third-party harassment provisions in the Equality Act 2010, and will be published on 20 September.

Arabella Ure (Arabella.Ure@clydeco.com) is a solicitor at Clyde & Co LLP.

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