Harassment

Unlawful Harassment claims at Tribunal may be broadly classified as;

• Course of conduct cases – where the Applicant has been subjected to repeated harassment during the course of her employment.
• Single incident cases – where one, unheralded, unforeseeable, incident occurs and is considered to be so serious as to be considered a barrier to sexual equality in the workplace
• Failure to investigate or protect cases – where the employer has failed to carry out a full and proper investigation of an allegation of harassment and take whatever steps are deemed necessary in the light of the findings of that investigation.

A Code of Practice gives guidance to employers as to:

• The nature of Sexual Harassment and its effect on the victims
• A definition that harassment amounts to “unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work. This can include unwelcome physical, verbal or non-verbal conduct”
• The legal implications for employers
• The steps that employers should take in order to prevent harassment in the workplace.

Employers should be aware that Tribunals accept the Code as evidence of good practice and should ensure that they have in place a set of rules and standards for their employees to follow, and publish a Policy with which to deal with complaints.

For a cause of action to arise relating to harassment a tribunal will seek to satisfy a three-stage test:

• Less favourable treatment was shown to the Applicant
• The Applicant’s gender, race, or disability is the cause of the differential treatment
• The victim has been subjected to detriment by the differential treatment

The complexity of the legislation surrounding harassment and discrimination – and indeed victimisation – should not be underestimated. In Driskel v Peninsular Business Services Ltd. it was held that where a male supervisor engaged in vulgar behaviour with a junior male colleague it does not follow that such behaviour will provide a defence if the supervisor attempts to engage in similar behaviour with a female subordinate as behaviour of this nature is more likely to be intimidatory when directed at a female.