Harassment is a topic which employers, HR professionals and employment lawyers will likely encounter at some stage in their careers. We know that acts of harassment committed by one employee towards another employee, within the course of their employment, can result in the employer being sued and facing awards of compensation. After all, the employer is vicariously liable for the actions of its staff within the course of employment.
When I discuss harassment in seminars etc, and give some case examples, it is often met with surprise from the audience as to how wide the concept of harassment can actually be. As an example, a recent case in which I was involved concerned an employee alleging that they had been harassed when they were instructed to stop taking copious notes when meeting with their line manager (this was apparently due to the person’s religion). That claim was not successful, but it illustrates the point that the conduct in question is often not as severe as people might expect.
Harassment is defined as unwanted conduct, which is related to a protected characteristic (such as sex, race, religion) and which has the purpose or effect of creating an intimidating, hostile, offensive, degrading or humiliating environment for the person on the receiving end. The words purpose or effect show the width of the concept, because even a person’s intentions are innocent (e.g. in the case of the commonly cried defence “it was just a bit of banter”), the words “or effect”, make clear that the impact which the actions have are just as relevant.
What, then, is the legal test in assessing whether the alleged unwanted conduct had the effect of creating an intimidating, hostile etc environment? Three factors are relevant: –
- The perception of the person complaining;
- The other circumstances of the case; and
- Whether it is reasonable for the conduct to have that effect (on the person complaining).
The recent case of Ali v Heathrow Express Operating Company Limited and Redline Assured Security Ltd is a good example of this test in practice. Mr Ali is a Muslim and was employed as a security guard at Heathrow. The second respondent in the case (Redline) were responsible for carrying out security checks at Heathrow. This often involved planting suspicious objects to test how the security guards would respond. On one such occasion, Redline planted a bag which contained a box, some electrical cabling, and a label with the Arabic words “Allahu Akbar”.
Mr Ali did not discover the planted object himself, but was one of a number of staff who received an email following up with a report on how the incident had been handled. The email included images of the objects and the label. Mr Ali lodged employment tribunal proceedings for discrimination based on his religious beliefs. Specifically, he alleged that he had been harassed. His claim was lodged against both his employer and Redline, on the basis that Redline was acting as agent for his employer and so both could be liable.
The employment tribunal determined that it was not reasonable for the claimant to perceive that the conduct in question had the effect of creating an intimidating, hostile, degrading etc environment for him. In particular, he should have appreciated that in using the phrase “Alluha Akbar”, the respondents were not seeking to associate Islam with terrorism. Rather, they had used the phrase in light of recent cases where the phrase had been used by terrorists, to plant a suspicious object to test the alertness of the Heathrow security staff to potential security threats.
Mr Ali appealed the decision to the EAT, but he was not successful. This case is a useful reminder that not only is it the perception of the victim which is relevant in a harassment case, but also the wider circumstances of the case, together with a test of whether the victim’s perception is reasonably held. Not all conduct which is related to a protected characteristic and which causes offence or upset will pass the reasonableness threshold. An important factor in the assessment will be what the claimant thought, acting reasonably, as to the reason behind the unwanted conduct. If further reading on harassment is of interest to you, I wrote something about third party harassment recently, click here.
If you require advice about any of the issues highlighted here, please contact a member of the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
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