The Black Lives Matter movement has shone light on the racism that occurs in our society. Whilst many are aware that discrimination can occur in the workplace, directly and indirectly, many are unaware that discrimination can also occur by association. This blog will set out the test that is applied in a harassment claim where an individual is harassed directly or by their association with another person.
What is harassment?
According to the Section 26(1) of the Equality Act 2010 (EqA 2010), harassment occurs when:
‘A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:
Violating B’s dignity, or
Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.’
In other words, if someone says or does something negative due to someone else’s protected characteristic which either violates their dignity or creates an environment which is intimidating, hostile, degrading, humiliating or offensive, this may amount to harassment under the EqA 2010.
When considering whether the unwanted conduct has the effect referred to above the Tribunal will consider how the offended person “B” perceives the behaviour of the offender “A”, this is a subjective test and it does not require an intention to offend by A. It will also look at the other circumstances in the case, such as the seniority of the person making the comment and the environment in which the conduct occurs; and finally, whether looking at it objectively, it was reasonable for the behaviour of A to have the effect on B claimed.
What is a protected characteristic in the context of harassment under the EqA 2010?
- Age
- Disability
- Gender Reassignment
- Race
- Religion or belief
- Sex
- Sexual Orientation.
Workplace harassment
Taking the above into account, if an individual is subjected to racist comments, or comments that create an offensive or hostile environment, such as people saying “all lives matter” in response to a discussion around Black Lives Matter; if that person was saying it with the purpose or effect of violating somebody’s dignity or creating the aforementioned environment, for example, by not taking on board the relevance of the issues or the impact of their statement this could, in some circumstances, satisfy the test for harassment. In such a case that individual could potentially pursue a claim against the individual making the comments and the employer who would be vicariously liable for the actions of the individual in a work context (see below). However, as set out above, it would be necessary to consider how the individual “B” was affected by the comments, the manner and context in which they were made, and whether B’s reaction was reasonable in the circumstances.
In terms of vicarious liability, the starting point is that employers are responsible for the actions of their staff in a work context, that is, unless they can show that they took all reasonable steps to prevent the discriminatory act from happening. It is not enough to react to discriminatory behaviour, and simply having an Equality and Diversity Policy will not be enough. Best practice for employers to reduce the likelihood of such issues arising in the workplace and being able to defend claims if they do arise include:
- Having and implementing an equal opportunities policy and an anti-harassment and bullying policy, and reviewing those policies as appropriate.
- Making all employees aware of the policies and their implications.
- Training managers and supervisors in equal opportunities and harassment issues.
- Taking steps to deal effectively with complaints, including taking appropriate disciplinary action.
What is associative harassment?
Associative harassment occurs when someone harasses someone else due to a person who is associated with them. For example, a person treating another person unfavourably due to the race of their spouse or partner.
Another example, which is cited in the explanatory notes of the EqA 2010, is a white worker seeing a black colleague being subjected to racially abusive language. Despite not sharing the same protected characteristic as her black colleague, she could also pursue a claim of harassment if the language also creates an offensive environment for her.
The key point here is that this conduct has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment. Therefore, the offending individual cannot use the defence that the person who is offended cannot claim discrimination because they do not share the same protected characteristic.
Consequences
If the tribunal finds an individual guilty of harassment or associative harassment, they and / or the employer could face having to pay uncapped compensation. The level of compensation depends on the impact of the conduct on the individual as is referred to as “injury to feelings” (although if the conduct results in the dismissal of B they can also claim loss of earnings).
The tribunal can also make a recommendation. The purpose of a recommendation is to reduce the effect that the discrimination has on both the claimant and the wider work force.
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