The Employment Appeal Tribunal has looked at the legal test for harassment twice in the last few weeks. In this week’s blog, we consider what employers can learn from these judgments and how they might assist in analysing the risk posed by any harassment allegations raised in the workplace.
The case of Forsbrook v Governing Body of Windsor Clive Primary School took us right back to basics: that ‘harassment’ doesn’t exist as a free-standing employment claim. To successfully claim harassment in an employment tribunal, an employee needs to be able to show that the harassment was ‘related to’ a protected characteristic. That is not to say that the employee is required to show that the harassment was ‘because of’ the protected characteristic. The causal bar is not set that high. But some linking factor is required. The relevant protected characteristics for harassment are: sex, sexual orientation, race, religion or belief, disability, age and gender reassignment. It’s worth noting here that pregnancy/maternity and marriage/civil partnerships are not protected characteristics for the purposes of harassment.
In Forsbrook the Claimant had the protected characteristic of disability (she was asthmatic). She was absent from work. She attended an attendance management meeting where it was agreed that, rather than being given a caution, she would be referred to occupational health. However, a clerical error meant that a caution was recorded against her file. When she commenced a second period of absence sometime later, she received a letter noting her previous caution and inviting her to a Stage 2 absence meeting. This was followed by further correspondence until the mistake was realised and rectified. The Claimant claimed disability-related harassment. Her claim was successful at tribunal. However, the EAT held that the tribunal had provided insufficient reasoning for its conclusions that the Claimant was subjected to harassment. In particular, they had failed to spell out the relationship between the conduct and the disability in question – the conduct had to, in some way, be ‘related to’ her disability. It could not just be poor conduct in and of itself.
The other recent EAT case looking at harassment was Carozzi v University of Hertfordshire. In this case, the Claimant was Brazilian. Comments were made about her strong accent. She claimed race-related harassment. The tribunal, dismissing the claim, held that although comments were made about her accent, the person who made them was not motivated by her ethnic origin when making them so there was no harassment. The EAT disagreed, confirming that there’s no need to show intent on the part of the harasser in order to demonstrate that conduct is ‘related to’ a protected characteristic. The question of motive is dealt with in another part of the test for harassment when you look at whether the conduct had the ‘purpose’ (i.e. intent) or ‘effect’ (i.e. unintentional on the part of the alleged harasser) of harassing the victim.
These two cases serve as a reminder that a step-by-step approach should be taken when analysing the risk of harassment in any given case. The constituent elements of the legal test are:
- Is there unwanted conduct? (per the EAT’s ‘per incuriam’ comment in Forsbrook – generally to be viewed from the perspective of the victim)
- Is it related to a protected characteristic? (some connection is required)
- Did it have the purpose of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them?
- If not, did it have the effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them?
- If looking at the effect of the conduct you must consider the perception of the victim; the other circumstances of the case; and whether it is reasonable for the conduct to have that effect.
- If harassment is made out the claim will succeed unless the employer can show it took all reasonable steps to prevent the harassment from taking place.