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Defining harassment in the workplace: Lessons from Carozzi and Forsbrook
‘Harassment’ doesn’t exist as a free-standing employment claim in the UK. To successfully claim harassment in an employment tribunal, an employee needs to be able to show that the harassment was ‘related to’ a protected characteristic. That is not to say that the employee is required to show that the harassment was ‘because of’ the protected characteristic. The causal bar is not set that high. But some linking factor is required. The relevant protected characteristics for harassment are: sex, sexual orientation, race, religion or belief, disability, age and gender reassignment.
There’s no need to show intent on the part of the harasser in order to demonstrate that conduct is ‘related to’ a protected characteristic. This was made clear by the Employment Appeal Tribunal in the recent case of Carozzi v University of Hertfordshire. The question of motive is dealt with in another part of the test for harassment when you look at whether the conduct had the ‘purpose’ (i.e. intent) or ‘effect’ (i.e. unintentional on the part of the alleged harasser) of harassing the victim.
This point was looked at again by the EAT very recently in the case of Forsbrook v Governing Body of Windsor Clive Primary School. In this case, the Claimant was disabled with asthma. She was absent from work due to asthma. She attended an attendance management meeting where it was agreed that, rather than being given a caution, she would be referred to occupational health. However, a clerical error meant that a caution was recorded against her file. When she commenced a second period of absence sometime later, she received a letter noting her previous caution and inviting her to a Stage 2 absence meeting. This was followed by further correspondence until the mistake was realised and rectified. The Claimant claimed disability-related harassment. Her claim was (at least partly) successful. The EAT, on appeal, held that the tribunal had provided insufficient reasoning for its conclusions that the Claimant was subjected to harassment. In particular, they had failed to spell out the relationship between the conduct and the disability in question.
The EAT took the opportunity to provide guidance that “Unwanted conduct should usually be approached based on the subjective view of the individual. Unless the purpose of conduct is to create the prohibited environment or to violate dignity, the reasonableness of “effect” within the statutory meaning will be the key to whether such conduct could amount to harassment”.
This case, like Carozzi, serves as a reminder that a step-by-step approach should be taken when analysing the risk of harassment in any given case. The constituent elements of the legal test are:
- Is there unwanted conduct (generally to be viewed from the perspective of the victim)?
- Is it related to a protected characteristic (some connection is required)?
- Did it have the purpose of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them?
- If not, did it have the effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them?
- If looking at the effect of the conduct, you must consider the perception of the victim; the other circumstances of the case; and whether it is reasonable for the conduct to have that effect.
- If harassment is made out the claim will succeed unless the employer took all reasonable steps to prevent the harassment from taking place.