Bystanders can be victims of harassment too

Under the Equality Act 2010, harassment is defined as unwanted conduct related to a protected characteristic that violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. Compensation can include unlimited injury to feelings awards, so it’s an area HR can’t afford to overlook.

Breaking down the legal test

The definition of harassment can sometimes seem a little ‘intimidating’ itself but the nuts and bolts of it break down quite simply:

• There has to be conduct which is unwanted by the complainant.

• That conduct has to either be conduct of a sexual nature or be related to one of the legally protected characteristics (sex, sexual orientation, religion or belief, race, age, disability or gender reassignment).

• Crucially, the complainant doesn’t have to actually have one of these characteristics, the conduct just needs to relate to one of them.

• The conduct must either have the purpose OR effect of harassing the victim (taking account of the victim’s perception, all the wider circumstances and the reasonableness of the conduct having such an effect).

It is this last part of the definition of harassment which gives this area of discrimination such a wide ‘reach’: it covers situations where the conduct was not directed at the individual and was not in any way intended by the alleged harasser. This is what makes it such a slippery fish for employers to handle and control.

Bystanders can be victims too

In Moonsar v Fiveways Express, a data clerk won her case after male colleagues viewed pornography nearby – she wasn’t shown the images, but the tribunal still found her dignity had been undermined.

Similarly, in the recent case of Davies v White Dove Garages, a male employee overheard crude sexual comments and succeeded in a sexual harassment claim, even though the comments weren’t directed at him.

Even if a victim is not the direct recipient of unwanted conduct, harassment can still occur. A hostile and degrading environment can impact a bystander just as much as a direct victim.

When banter crosses the line

To be harassment, the conduct has to be ‘unwanted’. The problem you’ve got is distinguishing whether employees are genuinely and happily participating in ‘banter’ (in which case the harassment risk is low) or whether employees are putting on a front to protect themselves from what is unwanted conduct (in which case you might be in trouble).

In Munchkins Restaurants v Karmazyn, female staff took part in sexual banter as a coping strategy. The tribunal found it was still harassment – even if they occasionally joined in. The EAT upheld that decision.

In Robson v Clark’s Mechanical an employee nearing retirement was referred to as ‘Half-dead Dave’ by colleagues, including his supervisor. He brought a claim of age-related harassment. His supervisor told the tribunal that the name had been just ‘banter’ and there was no malice involved. The tribunal found that the employee saw the comment as reflecting his age, something he felt vulnerable about. He was awarded almost £25,000 in compensation.