The (relatively) new President of the EAT, Mr Justice Underhill, has usefully laid down guidance on harrassment provisions, in the case of Richmond Pharmacology v. Dhaliwal [2009] UKEAT. Until 2003 harassment didn’t exist as a discrete statutory claim, meaning that the courts had to adapt the normal provisions on detriments in employment to cover harassing behaviour. It simply wasn’t up to the job, as an actual detriment in the Claimant’s employment was not always easy to establish.

Following implementation of Directive 2000/43/EC harassment was defined as follows in (more or less) all areas of unlawful discrimination:

(1) A person subjects another to harassment … where, on [the unlawful grounds], he engages in unwanted conduct which has the purpose or effect of –

(a) violating that other person’s dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.

In Dhaliwal Underhill J helpfully breaks down this provision. He notes there is a three stage test:

  1. Did the Respondent engage in unwanted conduct?
  2. Did the conduct in question have either the purpose or the effect of (i) violating the Claimant’s dignity or (ii) creating an adverse environment for him or her?
  3. Was that conduct on prohibited grounds? (eg sex, race, national origins, sexual orientation and so on)

It is made fairly clear that ET judgments must address these three points in their reasons.

There are four other important points made:

  1. Authorities on harassment prior to the new statutory definition above are “unlikely to be helpful.” Furthermore, harassment under discrimination legislation and harassment under the Protection from Harassment Act 1997 are completely different beasts.
  2. It’s either a purpose or an effect (or of course both!) that are necessary at stage 2. The practical effect of this is that a claim will be successful if the conduct had the consequence of violating the Claimant’s dignity or creating an adverse environment, even if the Respondent’s purposes were innocent. This could also work the other way round, if the Respondent for some reason intended that the conduct would have the effect, but in fact it did not. Underhill J points out that the latter claim will be rare, but it does mean that overt abuse (where the purpose is clearly meant to be abusive) can be the subject of a successful claim even where the Claimant is unaffected by the treatment.
  3. Subsection 2 should not be forgotten – there is an objective test as to whether it was reasonable that the conduct had the effect complained of.
  4. ‘Grounds’ – an examination into the ‘mental processes’ of the Respondent, so as to ascertain whether the treatment was on the grounds of the Claimants’ race, sex, etc, is not necessary where the abuse is overtly racist, sexist and so on.

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