Harassment and the Equality Act 2010: checklist

Sarah-Marie Williams of Clyde & Co LLP concludes a series of articles on the impact of the Equality Act 2010 on the law relating to harassment, with a checklist to help employers avoid liability for harassment claims under the Equality Act. The Equality Act is intended to improve protection against harassment in the workplace by widening the definition of harassment and extending liability for third-party harassment. 

1. Ensure that you have an anti-harassment/dignity at work policy.

It is advisable for all employers to have a policy on harassment/dignity at work. The policy could form part of a wider equal opportunities policy that covers how the employer will deal with issues of discrimination and harassment, or it could be a standalone policy on harassment only. It is common practice for employers to include policies on harassment and bullying in their staff handbook. Under s.109 of the Equality Act 2010, employers may be liable for discriminatory and harassing behaviour by employees towards other employees, unless they take reasonable steps to prevent that behaviour. A policy on harassment should be treated as the bare minimum needed to show that the employer has taken reasonable steps to prevent harassment in the workplace.

2. Review existing anti-harassment policies to ensure that they meet the requirements of the Equality Act 2010.

The Equality Act 2010, the core provisions of which come into force on 1 October 2010, will bring about a number of changes to the law on harassment (see Harassment and the Equality Act 2010: overview in this series for more details). Therefore, it is important that employers review existing policies to ensure that they comply with the Act and that they notify employees of the changes.

3. Be aware that protection against harassment extends to all "relevant protected characteristics".

The Equality Act 2010 introduces a new term, "protected characteristics", to refer to all 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. Harassment is prohibited under the Act in respect of "relevant protected characteristics", which include those listed above with the exception of marriage and civil partnership and pregnancy and maternity.

4. Be aware of the risks of harassment by association and perception.

An intention of the Equality Act 2010 is to extend protection against harassment by association or due to perception to all relevant protected characteristics. The definition of harassment has been harmonised across the relevant protected characteristics with the aim of providing protection against harassment because of an association with someone who has a relevant protected characteristic, and harassment that is based on a perception (whether or not that perception is correct) that an individual has a particular protected characteristic. Employers should be alert to the fact that the scope of protection under the Act will be wider, which could result in more potential claims.

5. Be aware that employees to whom comments and/or actions are not directed can bring harassment claims if they are offended.

The anti-discrimination legislation in place prior to the implementation of the Equality Act 2010 defines harassment in relation to most of the discrimination strands as unwanted conduct "on grounds of" a characteristic (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). The definition of harassment in the 2010 Act defines harassment as "unwanted conduct related to a relevant protected characteristic". Replacement of the words "on grounds of" with "related to" is intended to result in a wider test and makes it clearer that those who are offended by conduct that is not directed at them will be protected and could bring a harassment claim against their employer.

6. Ensure that procedures are in place for reporting and dealing with harassment.

Employers should ensure that their harassment policies and procedures set out how, and to whom, employees should report allegations of harassment. Employers should build flexibility into reporting procedures so that, for example, employees can report allegations about their manager to another person. Policies should also state the employer's commitment to investigating and dealing with allegations of harassment. Complaints about harassment may be addressed under a specific procedure for dealing with harassment. Alternatively, an employee might decide to raise a grievance under the grievance procedure.

7. Take allegations of third-party harassment seriously.

Under the Equality Act 2010, an employer will be liable for harassment by a third party (for example a customer or supplier) that is related to any of the relevant protected characteristics if it knows that the employee has been subjected to harassment in the course of employment by a third party 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". It does not matter whether or not it is the same third party who harasses the employee on each occasion. Employers should take all allegations of harassment seriously, including allegations of third-party harassment, as they may be liable if they have been put on notice that an employee is at risk and they have had the opportunity to act to stop the harassment, but have failed to do so. (See Harassment and the Equality Act 2010: case study 2 in this series for an example of when the third-party harassment provisions apply.)

8. Take steps to try to prevent third-party harassment.

As employers may be liable for harassment of employees by a third party they should ensure that, when they are made aware that an employee has been harassed, they take steps to prevent it happening again. Steps that employers could take to try to reduce the risk of subsequent incidents of third-party harassment include making the perpetrator aware that the employer will not tolerate harassment of its employees and, where appropriate and feasible, considering moving the employee or changing his or her duties (with agreement).

Ideally, employers should take steps to minimise the risk of third-party harassment of employees at the outset, for example by making clear to customers, suppliers and other parties with which they deal that they will not tolerate harassment of their staff. However, employers will also be alive to the difficulties of balancing the need to minimise this risk while maintaining good relations with those third parties.

9. Instigate the disciplinary procedure where necessary.

If, following an investigation, an employer finds that an allegation of harassment is well founded, it should consider whether or not to instigate its disciplinary procedure with a view to taking disciplinary action against the perpetrator. By instigating the disciplinary procedure, the employer can demonstrate that it:

• takes allegations of harassment seriously;
• is taking steps to prevent further harassment; and
• operates a zero tolerance approach to harassment.

10. Train managers to recognise and deal with harassment.

Employers should train managers in how to recognise and deal with harassment, whether by fellow employees or third parties. A manager's failure to address harassment in the workplace increases the risk of a successful harassment claim against the employer (not to mention the damage to morale and work performance). Therefore, it is in an employer's interest to ensure that its managers are alive to the issues surrounding harassment, including the employer's wider liability under the Equality Act 2010.

The next topic of the week article will be the first in a series on pre-employment health screening and will be published on 5 October.

Sarah-Marie Williams (Sarah-Marie.Williams@clydeco.com) is a legal director at Clyde & Co LLP.

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