Harassment, Victimisation and Discrimination
See here for our FAQs on harassment, victimisation and discrimination.
What is discrimination
Discrimination at work can take different forms. The law distinguishes between:
- Direct discrimination
- Indirect discrimination
If you are an employees, you are protected from discrimination at all stages of employment, including:
- At the recruitment stage- e.g. in relation to how positions are advertised and how interviews are conducted
- During your employment – e.g in relation to your terms of employment, working conditions opportunities for promotion and transfer or pay
- After your employment has finished – e.g. in relation to dismissal appeals, references
If you are self-employed or a worker, see https://www.workingfamilies.org.uk/articles/maternity-discrimination-a-guide-to-your-rights/ for more details.
What are protected characteristics?
The Equality Act 2010 protects people from discrimination on the basis of certain characteristics known as ‘protected characteristics’. These are:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
“Parents and carers” is NOT a protected characteristic but you may be able to use sex, maternity or even in certain cases disability discrimination if you are treated unfavourably because of your childcare responsibilities.
There are also special rules that protect you if you are discriminated because you work part-time: see https://www.workingfamilies.org.uk/articles/changing-from-full-to-part-time-hours-protection-against-less-favourable-treatment-2/.
What is harassment?
Harassment is unwanted behaviour which you find offensive or hostile, which makes you feel (with good reason) uncomfortable, intimidated or humiliated.The test is whether the behaviour made you feel that way and whether it is reasonable for you to feel that way.
It is unlawful under the Equality Act if
- it is meant to or has the effect of either:
- Violating your dignity
- Creating an intimidating, hostile degrading, humiliating or offensive environment and
- it is because of or connected to most of the protected characteristics above.
You cannot bring a claim in relation to the protected characteristics of marriage and civil partnership or pregnancy and maternity. If your harassment is related to pregnancy or maternity, you should take action under harassment relating to your sex.
You don’t need to have previously objected to something for it to be unwanted: a one-off incident can amount to harassment. The person harassing you does not need not be aware that their behaviour is unwanted. It can still be harassment even if no-one actually meant to offend you.
Do you have to have the relevant protected characteristic to suffer from harassment?
You do not need to have the relevant protected characteristic to suffer from harassment. You are also protected against harassment where unwanted comments are directed towards them and are related to:
- someone else’s protected characteristic (associative harassment); or
- the perception that you have a protected characteristic.
For example if a colleague makes unwanted jokes towards you, because they think you have a disability (even though it is not the case) or because someone else, like a family member, has a disability then you may have a claim for harassment related to disability.
Do employers have a duty to prevent harassment?
In most cases, your employer can be judged to be responsible for the actions of their employees who discriminate, harass or victimise their colleagues in the course of their employment.
Even when the harassment comes from third parties such as customers or clients, your employer may be liable for their actions in response or failure to challenge the behaviour response (e.g. not preventing or stopping the third party), if their action or inaction was because of the relevant characteristic.
What is direct discrimination?
Direct discrimination is when you are treated worse than someone else because of a protected characteristic. The Equality Act talks of “less favourable treatment”.
Less favourable treatment because of your association with someone who has a protected characteristic is also direct discrimination. If you are treated worse than your colleagues just because you are associated with someone that has a disability (i.e. you are refused flexible working just because you are a carer or your employer dismisses you because they find out about your caring responsibilities), you may have a claim for direct disability discrimination by association.
If you are treated less favourably because you are thought to have protected characteristic (with the exception of marriage and civil partnership) – even though you do not actually have that protected characteristic, this is still discrimination. For instance, if you are heterosexual but your manager thinks you’re gay and refuses to invite you to your team’s Christmas party because you’re gay.
What is indirect discrimination?
Indirect discrimination is when your employer has a policy or practice in place, that they have no objective reason for, that applies equally to everyone in the same way but because of your protected characteristic, it means that you (and anyone else who has the same protected characteristic) suffer a disadvantage compared to others.
What is the difference between harassment different and direct and indirect discrimination?
There are a number of differences between a claim for harassment and a claim for direct or indirect discrimination:
- In order to claim direct or indirect discrimination, you must show that your treatment was ‘less favourable’ than it would have been had they not had or been perceived to have a particular protected characteristic. This type of claim requires a comparison, involving a comparator who does not have the relevant protected characteristic. By contract, in harassment claims, all that must be shown is unwanted conduct that has the necessary negative effect – it is unnecessary for you to have or be seen as having the protected characteristic and there is no need for comparison.
- The unwanted behaviour in a harassment claim must have the purpose or effect of violating your dignity or of creating an unpleasant working environment for them, whereas for indirect or direct discrimination this is not necessary. This unpleasantness can mean that, although the principles for calculating compensation are the same, the nature of a harassment claim can result in larger awards for injury to feelings.
- Claims for harassment cannot be brought in relation to the protected characteristics of marriage and civil partnership or pregnancy and maternity (though such a claim could potentially be brought as sex harassment). Direct or indirect discrimination claims can be brought in respect of any protected characteristic.
- In some cases, a claim for harassment can also be brought where an unrelated third party (for example, a customer) harasses you during the course of your work. This is not the case for direct and indirect discrimination.
- There is a justification defence available for indirect discrimination. There is no defence to a claim of harassment.
- Finally, harassment has become an increasingly hot topic. The Equality and Human Rights Commission have recently published a report stating that the scale of workplace harassment is disturbing and have issued new guidance calling on employers to take various steps including implementation of effective anti-harassment policies. The rise of #MeToo and other high profile sexual harassment cases have also shown the damage a culture of harassment can cause to a business. These factors should ensure that dealing with harassment is a priority for employers even compared to other types of discrimination.
What is victimisation?
Victimisation is where you are treated less favourably because you have complained (or intend to complain) about discrimination or harassment in the workplace, or because you have helped someone who has been discriminated against.
You should not be disciplined or dismissed, or suffer repercussions from colleagues, for complaining about discrimination or harassment at work.
What to do about harassment or victimisation at work
If a colleague is harassing or victimising you, they and your employer are both responsible. Usually it is better to take action against an employer than an employee as you will likely deal with a member of HR or a lawyer rather than the colleague harassing you.
Each employer will likely have its own procedures on how to deal with issues of discrimination such as harassment and victimisation. You should check your employer’s policy. Your options for resolving the situation will include:
- Making an informal complaint by talking or writing to your employer
- Making a formal complaint to your employer – ‘raising a grievance’, see https://www.workingfamilies.org.uk/articles/appeal-or-grievance-letters/
- Negotiating with your employer to reach an agreement, see https://www.workingfamilies.org.uk/articles/523/
- Use mediation – a trained mediator will try to help you and your employer reach an agreement before legal action (this may be an in-house mediator or a mediator from outside the business depending on your employer)
- Take legal action at an employment tribunal against the employer or the employer and the colleague causing the discrimination, harassment or victimisation – this should in most cases be a last resort, but beware of time limits for starting a legal action, see https://www.workingfamilies.org.uk/articles/early-conciliation/
For more detail on whether or not to raise a grievance, see https://www.workingfamilies.org.uk/workflex-blog/grievances-do-more-harm-than-good/
This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.