Discrimination & Harassment

Employer

Employers often think that they can only be accused of discrimination and harassment if they themselves discriminated or harassed an employee. This is not correct.

Under the law, an employer will be held legally responsible for discrimination or harassment if that discrimination or harassment occurred by someone who is:

  • employed by the employer, or
  • engaged to carry out the employer's instructions (normally known as an "agent").

This means that, under English Employment Law, it is possible for an employer to be held to be legally responsible for another person's unlawful discrimination or harassment. The reason for this is that an employer is legally responsible for the acts carried out by workers employed by them during the course of their employment. The employer is considered to be the "principal".

In addition, English law does NOT allow the employer to raise as a defence the fact that the employer had no knowledge of the discrimination.

As an example, if an employer leaves a manager in charge of a branch office and that manager, without the employer's knowledge, harasses an employee at that branch office, the employee will have a claim against the employer. This is true even if the employer never returned to that branch office and even if the employee never previously raised a complaint against the manager with the employer.

As an employer, you can reduce this risk if you ensure that your employees or agents behave properly by ensuring that your staff follow pre-set policies and procedures. It is the duty of an employer to ensure that all members of staff work in an environment free from discrimination and harassment.

This form of liability - known legally as "vicarious responsibility" - can be an onerous obligation placed upon an employer. It is therefore essential, if you are faced with an employee claiming harassment or discrimination, that you seek legal advice as soon as possible. Preferably you should obtain legal advice when drafting and implementing your company's policies regarding harassment and discrimination.

The above is for general information only and should not be construed as formal legal advice.


Employee

Employment Law protects employees from discrimination on numerous grounds, including race, religion, disability, sex, pregnancy and maternity, marriage and civil partnership, age, gender reassignment, sexual orientation, and membership or non-membership of a trade union. These are collectively known as "protected characteristics".

Most of the law covering harassment and discrimination has been consolidated in the Equality Act 2010, which covers both direct and indirect discrimination.

Direct discrimination occurs when an employee receives less favourable treatment because of his or her protected characteristic, such as a woman being told she cannot become a brick layer because it is "a man's job". Indirect discrimination occurs when a requirement or condition is imposed that is apparently not discriminatory but that in practice is more difficult for one protected group to comply with (such as requiring a minimum height requirement for applicants of a job, which, generally, would discriminate against women). Sometimes, however, indirect discrimination is permitted by the law, provided that it can be shown that the discriminatory act was a proportionate way of achieving a legitimate aim.

Harassment is generally defined as an act which violates someone's dignity, or where someone suffers from an intimidating, hostile, degrading, humiliating or offensive environment. Harassment on the basis of someone's protected characteristic (such as sex, race or disability) is prohibited by the Equality Act 2010. Occasionally, the harassment may be so serious that it is a criminal offence under the Public Order Act 1986 and the Protection from Harassment Act 1997.

As an employee, if you are the victim of harassment or discrimination, your first course of action should be to approach your immediate line manager with your concerns. If the harassment or discrimination is originating from that person, you should raise your concerns with the next level of management. If things don't improve you should then lodge a formal grievance under your employer's grievance procedure. Although each employer has its own grievance procedures, normally you will have the right to be accompanied by either a work colleague or a trade union official to the hearing of your grievance.

If, following the grievance hearing, you remain unsatisfied, you can lodge a discrimination claim to an Employment Tribunal (although there are strict time limits for this).

Holding your employer accountable for the harassment or discrimination you have encountered is not, however, always easy, and proving that the harassment or discrimination has occurred is your responsibility. It is therefore very important to seek legal advice at the beginning of the harassment or discrimination. Fosters has a track record for representing employees who have been the victims of harassment or discrimination.

The above is for general information only and should not be construed as formal legal advice.

Contacting Us

Fosters Solicitors team of Business & Commercial lawyers have a wealth of experience and knowledge to assist you in relation to any legal query or matter you may have. Call us on 01603 620508 or complete our and a member of the department will be in touch very soon.