Under the old laws legal protection under an employment context was confined to legislation dealing with sex ( Sex Discrimination Act 1975), race ( Race Relations Act 1976 ) and disability discrimination ( Disability Discrimination Act 1975). ( IDS, 2003 ). According to Tolley (2003) harassment claims could only be entertained if the harassment fell within the range of prohibited behaviour under RRA (1976) S4, SDA 1975 S1 & 6 or DDA ss4 and 5. However no specific definition existed and the word "harassment" does not appear in any of these Acts.
The case of Ministry of Defence v Jerimiah (1980) ICR 13 clarified that detriment equates to `diaadvantage`. The UK courts established in the case of Strathclyde Regional Council v Porcelli ( 1986) IRLR 134 that acts of sexual and racial harassment committed at work are capable of constituting ` direct discrimnation` under the SDA and RRA. Liability for discrimantion can only be fixed on employers where such discrimation can be based on one of the grounds made expressly unlawful.
The SDA, RRA and DDA cover areas such as recruitment, dismissal, job-related benefits and `any other detriment in this regard. In the Porcelli case the court of session accepted that less favourable treatment, in the form of sexual harassment, came within the meaning of detriment. The Court of Appeal held in De Souza v Automobile Association (1986) ICR 514 that , although racial abuse can amount to racial discrimanation, any resulting detriment lies in the `effect` of the abuse and not in the abuse itself.
Here despite the defendant being referred to as " the wog" by a manager, a comment which had been accidently overheard, the Court concluded that she had not personally suffered any damage. One important consideration was that the offensive acts or abuse must be such that a reasonable employee would have felt disadvantaged under the same circumstances. In Bracebridge Engineering v Darby (1990) IRLR 3, EAT the court held that a single incident could be deemed harassment. 1991 EC code re DIGNITY AT WORK …
In the light of the 1991 code the courts have moved towards the view that an employee does not have to complain for a discriminatory act to constitute harassment. This was held in the Reed & anor v Stedman (1999) ****. This would appear to add further protection to thos employees who may be wary of complaining about one of their colleagues or peers. The basic premise of harassment is that it is unwanted conduct that is offensive to the recipient. In Insitu Cleaning Co. Ltd.
V Heads (1995) IRLR the court accepted that `unwanted` includes `unwelcome` or `uninvited`. In British Telecommunications plc v Williams 1997 ( IRLR 668 )the EAT interpreted the earlier Porcelli case as confirming that , because conduct constituting sexual harassment is gender specific there is no need for the complainant to establish that she has been treated less favourably than a male comparator. This meant it was no defence for the employer to show that persons of the other sex would have been similarily treated.
In Reed& anor v Stedman (1999 ) IRLR 299 the EAT ruled that `sexual harassment consists of words or conduct which are unwelcome to the recipient. Referring to the Code the EAT confirmed that it is for the recipient to decide what is acceptable and / or offensive. The case of Chief Constable of the Lincolnshire Police v Stubbs (1999) clarified that while a chance meeting outside of work would not be deemed `in the course of emploment` activities such as business trips, office parties, organised leaving parties and meeting with colleagues after work may well be in the course of employment.
New Law ? In 2001 the European Union introduced a legislative framework to tackle discrimanation on six fronts; sex, race, disability, sexual orientation, religon and age.. This framework comprised of three EC Directives namely The Race Discrimination Directive (no. 2000/43), The Equal Treatment Directive (NO 2000/78) and The Equal Treatment Amendment Directive ( No. 2002/73). All of these directives contain specific provisions to protect workers from harassment and state a common definintion of harassment.
This closely follows the "sexual harassment" definition stated in the 1991 EC Recommendation and Code of Practice on the Protection of the Dignity of women and men at work ( No. 91/131/EC). Under the new law the net was widened to include new anti-discrimination measures covering sexual orientation, religon and belief. Additionaly a specific definintion for " harassment" was introduced and applied across all strands of discrimination law Although not having same force in Law as a directive, which bounds all EU member states, the Code has been constructively used to shape case-law developments in the UK.
In October 2002 the Uk Government published draft regulations detailing how it proposes to implement these EC directives, incorporating a consistant definition of harassment. This new definition makes harassment a ground of unlawful discrimination distinct from direct or indirect discrimination. Indeed according to the IDS ( March 2003) the uk regulations definintion lessens the burden of proof required to proof harassment has taken place.
While the EC directive (2001) state that the complainant is required to show that the purpose or effect of the unwanted conduct has both violated their dignity and damaged the workplace environment the UK regulation only require that the complainant show that either of the two has occurred. Therefore, for UK employment purposes, if it can be shown that the applicants dignity has been violated then this alone may suffice to proof a case of harassment even where the work-place environment has not been adversely affected.
This point is of particular importance where a one off act, which we have already said may be sufficient to be deemed harassment, may affect a person`s dignity but would be less likely to impact on the over-all working environment. In addition these new harassment provisions requires a degree of subjectiveness be applied by the courts when deciding if harassment has taken place. Therefore the conduct must have a detrimental effect on the complainant or the work-place. The purpose or interntion of the harasser are less important under these new provisions.
Employment tribunals will only be entitled to make a finding of harassment if they have taken regard to all of the circumstances including the perception of the complainant. However the courts have sought to limit the subjectivity of this test in order to avoid employers being held liable by an over-sensitive employee. Since the publication of this EC code and subsequent regulations the UK courts have taken into account it`s definintion of harassment when applying the SDA