Genuine equality requires that all people be protected from harassment at work whatever their personal characteristics. Currently the law offers better protection to some individuals than others in circumstances that may lead to apparently unjust outcomes. This article identifies the difficulties for some victims in obtaining redress and proposes a convenient solution.

By Simon Anderson, barrister, Park Square Barristers

The Equality Act 2010

The only statutory definition of harassment is to be found in section 26 of The Equality Act 2010.

(1) A person (A) harasses another (B) if –

(a) A engages in unwanted conduct related to a relevant protected characteristic, and

(b) the conduct has the purpose or effect of –

(i) violating B’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account –

(a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect.

The difficulty with this definition is that it only offers protection if the unwanted conduct relates to B’s age, disability, gender reassignment, race, religion or belief, sex, or sexual orientation. Harassment more often arises from a character flaw on the part of the oppressor, rather than a characteristic of the victim. Indeed, it is possible for a bully to lack sufficient self-awareness and emotional intelligence to appreciate the effect of their conduct, or worse, be fully aware and not care.  A further shortcoming of this statutory definition is that it does not state what amounts to bullying. Harassment is a form of bullying, but not all bullying involves harassment.

The Protection from Harassment Act 1997

In Majrowski v Guy’s and St. Thomas’ NHS Trust [2006] UKHL 34 the House of Lords held that an employer may be vicariously liable for the acts of its employee in breach of the Protection from Harassment Act 1997. What amounts to harassment is not defined by the 1997 Act, which states that “A person must not pursue a course of conduct which amounts to harassment of another, and which he knows or ought to know amounts to harassment of the other…the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.” Ultimately this is a jury question that Baroness Hale in Majrowski said should be “Left to the wisdom of the court to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.”

In Veakins v Kier Islington Ltd [2009] EWCA Civ 1288 the Court of Appeal emphasised that the primary focus is on whether the conduct complained of is oppressive and unacceptable, as opposed to merely unattractive, unreasonable or regrettable, albeit the court must keep in mind that it must be of an order which would sustain criminal liability under the 1997 Act. A single instance is not ‘a course of conduct’ and cannot amount to harassment in breach of the 1997 Act. In Pratt v DPP [2001] EWHC Admin 483 it was also held that the incidents must be connected in terms of type and context.

Section 3(2) of the 1997 Act states: “On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.” Notably, there is no requirement to prove a foreseeable risk of injury: Jones v Ruth [2012] 1 WLR 1495. Indeed, as observed by Mr Justice Nichol in S&D Property Investments Ltd v Nisbet [2009] EWHC Civ 1726 “…Parliament was here intending to make plain that compensation could be given for the concern that harassment can generate even if it does not give rise to any psychiatric or medical condition.” He added that it could be proved by the claimant’s own explanation of the effects of the harassment, without the need for expert psychological evidence.

The Common Law Position

Applying ordinary principles of negligence, in Green v DB Group Services (UK) Ltd [2006] EWHC 1898 QB Mr Justice Owen stated that the following test needed to be satisfied:

• Has the claimant established that the conduct complained of took place and, if so, did it amount to bullying or harassment in the ordinary connotation of those terms? In addressing this question, it is the cumulative effect of the conduct which has to be considered rather than the individual incidents relied on.
• Did those involved in the victimisation or bullying know, or ought they reasonably to have known, that their conduct might cause the claimant harm?
• By the exercise of reasonable care, could they have taken steps which would have avoided that harm?
• Were their actions so connected with their employment as to render the defendants vicariously liable for them?

Bullying has no statutory or common law definition, although ACAS advises that it can be described as unwanted behaviour from a person or group that is either:

• offensive, intimidating, malicious or insulting,
• an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone.

The Health and Safety Executive rightly recognises that: “A conflict cannot be called bullying if the incident is an isolated event or if two parties of approximately equal ‘strength’ are in conflict.”

The Bullying and Respect at Work Bill

In a timed out private member’s bill, laid before parliament on 11 July this year, Rachael Maskell M.P. (Labour York Central) proposed an amendment to the Employment Rights Act 1996 making a constructive dismissal arising from bullying automatically unfair with the burden of proof moving to the employer to demonstrate that the reason for the resignation was not due to their failure to protect the employee. Laudable though the aims of the Bill were, there were several obvious shortcomings that deserve considering.

First, Rachael Maskell recognises that: “Bullying hurts: it destroys confidence, crushes mental health and causes physical ill health. For some, the pain is so great that they simply crumble. There is lasting trauma; some never recover, and some lose their lives. The power of a human to destroy another is very real.” This also accords with the author’s experience of representing injured victims. Injury awards can exceed £50,000 before financial losses are factored into the equation, yet there is no remedy for personal injury in claims for unfair dismissal: Dunnachie v Kingston Upon Hull City Council [2004] IRLR 727. Second, the remedy already exists for a breach of the implied ‘Malik term’ of mutual trust and confidence[1]. Albeit a claimant would require 2 years’ continuous service to bring a claim and compensatory awards are subject to the statutory cap. Third, the individual would be required to resign before claiming a remedy. The TUC reports that bullying is the second biggest workplace issue. Some 29% of workers will experience workplace bullying at some point, and one in 10 has experienced it in the past six months. Resigning and launching proceedings is a remarkably courageous step for those in financially precarious circumstances who may have to wait many months for a remedy with no guarantee of success. As Racheal Maskell acknowledges: “That lack of access to redress and justice explains why 53% of those who are bullied never report it.” It is unlikely that her proposal would have improved this statistic. Fourth, requiring a person to resign to become eligible to a remedy will not have the “chilling effect on negative workplace cultures” that she desires. Dismissing their tormenters is the better course.

Bullies typically surface when change occurs within an organisation, such as the arrival of a new employee. As far as the author can determine, the only advantage to the proposed legislation is that the employee would not be required to prove two years’ continuous service to qualify for protection if they felt compelled to resign in response, although why should they have to do so?

An Alternative Course

It is a legal peculiarity that a person who is harassed in their employment because of a mental impairment that amounts to a disability has a more readily available remedy than another person who is rendered disabled in consequence of the same behaviour. As Rachael Maskell acknowledges: “For those with a protected characteristic, section 26 of the Equality Act 2010 provides a route to seek remedy. For someone who does not qualify under the Equality Act, there is no legal protection.” The author contends that this is an undesirable form of inequality for which there is limited justification.

The author suggests that both the common law and PHA 1997 place greater obstacles to redress than for those able to claim under section 26 EqA 2010. The most egregious bar to justice is the payment of court fees, which amount to £10,000 on a money claim exceeding £200,000. Contrast this with the position in the employment tribunal where, following the decision of the Supreme Court in UNISON v The Lord Chancellor [2017] UKSC 51, single claimant fees of £1,200 were held to be unlawful under both domestic and EU law because they had the effect of preventing access to justice. As a consequence, there are now no fees to pay in the employment tribunal.

Establishing that unwanted conduct that might otherwise satisfy the definition of harassment in section 26 EqA 2010 is related to a relevant protected characteristic is difficult. Bullies are rarely explicit about their motives and prejudices. Whilst it is entirely right that those who are harassed for a reason related to a protected characteristic should be recognised, this could be achieved by providing for an enhanced award of aggravated damages where it is found proved. Perhaps the better legislative course is to remove the words “related to a relevant protected characteristic” from s.26(1) and incorporate them elsewhere in the section. Only then will all receive the protection under the law that Rachael Maskell rightly seeks.

 Simon Anderson, barrister, Park Square Barristers

[1] Malik v BCCI [1997] UKHL 23.