Discrimination, Victimisation, Bullying and Harassment

Discrimination, harassment, victimisation and bullying are terms which are sometimes confused in employment law. Each has a distinct meaning, although there is some overlap.

Discrimination is less favourable treatment which is unlawful and which is not objectively justified. In employment law, it only applies in terms of nine specific ‘protected characteristics’, which are listed in the Equality Act 2010. These are: age, race, sex, sexual orientation, pregnancy and maternity, gender reassignment, religion or belief, marriage or civil partnership, and disability. You may hear people saying that they have been discriminated on the basis of other factors, for example, their weight; this is usually an incorrect use of the term ‘discrimination’ and would be more accurately described as bullying.

Discrimination can be direct. This means that it is openly biased against a specific group of people. An example of direct discrimination on the grounds of race would be a job advertisement which stated, ‘Only British people may apply’.

A more subtle form, is indirect discrimination. This would typically, but not always, affect a certain group of people. For example, an employer requiring employees to have, and show off, a certain type of hairstyle may indirectly discriminate against Muslim women, who usually cover their hair for religious reasons. There may be Muslim women who choose not to cover their hair and there may be non-Muslim people who prefer to cover their hair for other reasons, but generally Muslim women will be disproportionately affected by this policy.

Please note that there are some exceptions when discrimination is allowed, but these are rare and must be objectively justified. For example, in some manual labour jobs, it may not be possible for a person with a specific physical disability to perform the work, even if reasonable adjustments are made. Similarly, it is often justified to require actors of a certain appearance to play particular roles, where the physical aspects of the character are an important part of the storyline, or necessary for authenticity.

Workers can make a discrimination claim to an Employment Tribunal regardless of their length of service, and damages are uncapped.

Harassment is behaviour which violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. An action can be harassment even if the harasser did not mean any harm by it, and it can be harassment even if the harassed person is not offended or upset by the behaviour. It can be a one-off incident or repeated behaviour. It can include spoken words, written words, gestures, or images.

Harassment comes in three main forms.

  • Harassment can be related to seven of the nine protected characteristics: age, race, sex, sexual orientation, gender reassignment, religion or belief, and disability. It cannot be related to pregnancy and maternity, or to marriage and civil partnership status. Behaviour can still count as harassment even if the harassed person does not actually possess a protected characteristic, but the harasser believes that they do. For example, if an employee was subjected to verbal abuse because his colleagues believed that he was gay even if, in fact, he was not gay.
  • Sexual harassment. This is often related to sex or sexual orientation, but it does not have to be. For example, a manager making sexual comments to all employees, regardless of their sex or sexual orientation, would still be sexual harassment. A new positive duty on employers to take reasonable steps to prevent sexual harassment in the workplace comes into force on 26 October 2024. Employers are advised to conduct a risk assessment.
  • Less favourable treatment as a result of harassment. This is when someone is treated unfairly due to their reaction to previous sexual harassment, or to previous harassment relating to sex, sexual orientation, gender assignment. For example, an employee undergoing gender reassignment raises a grievance, after which she is subjected to comments about ‘making a fuss’ and excluded from an expected pay rise.

It’s not possible to bring a stand-alone claim in the employment tribunal for third party harassment, for example harassment of employees by clients or customers. However, employers must take reasonable steps to prevent third party sexual harassment.

There is another type of harassment covered under the Protection from Harassment Act 1997. This is not necessarily related to a protected characteristic. An example of this would be stalking, and it is often also a criminal offence.

Victimisation is being treated badly due to having done, or intending to do, a protected act. It can also happen when an employee is only believed to have done, or believed to intend to do, a protected act. A protected act means taking action in relation to discrimination law, for example: complaining of discrimination, supporting someone else to make such a complaint, or giving evidence as a witness about alleged discrimination.

People are only protected by the law if they acted in good faith. This means that they believed that they were telling the truth and that they were not acting maliciously or with the sole intention of getting someone else into trouble.

Examples of victimisation could be being called a ‘troublemaker’, being excluded from social events, or being overlooked for promotion.

A person who has been victimised may be able to bring a claim for victimisation in an Employment Tribunal. There is no strict time frame required between the protected act and the unfair treatment for the two events to count as connected.

Bullying
There is no legal definition of bullying and it can be confused with harassment. Bullying does not have to be linked to a protected characteristic, but harassment does. Bullying may involve criticism, intimidation or threats, mocking, spreading rumours, laughing at someone without saying why, ignoring someone, unfair distribution of workload, lacking respect for authority or being excluded from company events or socials.

Employers should be careful not to dismiss such behaviour as merely ‘workplace banter’. All employees have the right to be treated with respect and for their employer to protect them from harm.

Severe bullying may lead to a claim of constructive unfair dismissal, where an employee walks out of their job and says that they were left with no choice but to hand in their notice.

It isn’t possible to make a claim solely for bullying in an Employment Tribunal, although if an employee resigns because of the bullying, they may have a constructive unfair dismissal case.

If you have received a complaint about any of the above matters, please contact us by emailing enquiries@perspectivehr.co.uk or by phoning 01392 247436.

Get in touch to discuss your HR ambitions

Accreditations

                      

© 2020 Perspective HR

Built with Gusto