Harassment or hurt feelings?
What is harassment?
Harassment is generally defined as “person A engaging in unwanted conduct which relates to a relevant protected characteristic, which either violates person B’s dignity or creates an intimidating, humiliating or offensive environment for B.”
When the Tribunal is deciding whether harassment has occurred, one of the things that they must consider is B’s perception and whether it is reasonable that A’s conduct had the effect of meeting the definition.
The bar for harassment is relatively low; indeed, the victim does not even need to make the perpetrator aware that the conduct was unwanted, and harassment can include behaviour such as gestures, jokes, banter, and pranks.
At what point does conduct become harassment?
In the recent case of Ali v Heathrow Express and RedlineAssured Security Ltd, the Tribunal had to decide whether the Claimant’s perception of the Respondent’s conduct amounted to harassment.
The Claimant was a Security Guard at an airport which carried out various tests on the Guards to see how they would respond to suspicious items and potential threats. In this instance, the Claimant found a package which contained a note with “Allahu Akbar” written in Arabic and some electrical wire.
Whilst this type of testing was commonplace for the Respondent, the Claimant, who was a Muslim, took offence to this particular circumstance as he believed that the Respondent’s conduct amounted to harassment based on his religious beliefs.
The Claimant issued proceedings, but the Tribunal disagreed with him, rather, stating that it was not reasonable for his perception to turn the conduct into harassment. The Tribunal further held that the phrase on the note was in the context of recent events and that the Respondent was not associating Islam with terrorism, which the Claimant had believed.
The Claimant was clearly unhappy with the ruling so appealed it based on the fact that the initial decision was perverse or insufficiently reasoned. Unfortunately for the Claimant, the Employment Appeal Tribunal rejected his appeal, finding that there were other factors to take into account when it comes to harassment, not just the Claimant’s perception.
Take away points
Whilst stereotyping can amount to discrimination and harassment; and in this case the Claimant argument that Muslims had been stereotyped as terrorists, the Appeal Tribunal still held that the Claimant’sperception of the conduct was not a reasonable one.
Every employer should ensure that employees are aware of the type of conduct that could amount to harassment and have adequate training and policies in place. Whilst the Tribunal will take the victim’s perception into account, it will not be the be all and end all when deciding whether harassment has indeed occurred.
If you would like us to review your harassment, behaviour and conduct at work policies, please get in touch with one of our Employment Law experts by calling 01752 663295.