Following on from our previous article on discrimination in the restaurant industry, this post examines the other two broad forms of discrimination that can occur in the workplace – harassment and victimisation.
Both harassment and victimisation are statutory torts under the Equality Act 2010. Previously to the Equality Act 2010 the protected characteristics (sex, age, disability, race etc.) in discrimination were covered under separate pieces of legislation. However, the Equality Act consolidated all of the “characteristics” relating to unlawful discrimination into one useful (and relatively coherent) Act.
As pointed out in the previous article, discrimination in the workplace can be a significant problem. This is especially so in the restaurant industry where (by this author’s anecdotal experience) the majority of staff are not British. Further, as an article signified last week, there is still pervasive sex discrimination in the restaurant industry. These are issues that need to be addressed and can only be done addressed through 2 means:
- Good management (the “carrot”); and
- The pursuing of discrimination claims in the Employment Tribunal (the “stick”)
However, this article is supposed to be concentrating on one form of discrimination: harassment. This claim will be defined below and explanations given through examples of relevant discriminatory conduct.
Harassment relating to a protected characteristic of a worker is unlawful under section 26 of the Equality Act 2010. A protected characteristic is the characteristic of the worker that is being derided by the discriminatory conduct – for example a worker’s age, sex, race or disability (among others). There are three broad “sub-types” of harassment:
- Unwanted conduct harassment
- Sexual harassment
- Non-submission harassment
Unwanted conduct harassment
Unwanted conduct harassment occurs when the worker is subjected to conduct which has the purpose or effect of creating an intimidating, hostile, degrading or humiliating environment for them or of violating their dignity. We’ll use the protected characteristic of age in exploring an example of unwanted conduct harassment.
Violet is 55 years old. She works as a waitress in “Danny’s Burgers”, a burger restaurant in London. One day, Donald, the assistant manager, has an argument with Violet. He calls her a “wrinkly old cow” and says “you’re too old to be working here. Get a zimmer frame”. Violet is extremely hurt by this and humiliated that this was all said in front of the other workers at the restaurant. Violet could pursue both Donald and Danny’s Burgers for discrimination (age-related harassment). Further, if any of her colleagues were legitimately and genuinely offended by Donald’s actions then they may also be able to pursue a claim for age-related harassment.
Sexual harassment is a commonly referred-to term in the media. Its legal definition is unwanted conduct of a sexual nature which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or of violating their dignity. It is similar in nature to the unwanted conduct harassment explained above with the added tenet that the behaviour must be sexual in nature. This doesn’t necessarily have to be overt physical harassment – a slap on the bottom or a hand down a top. It could be something more subtle – for example a colleague using a topless model as the screen saver on his desktop computer. Further, it doesn’t have to be “male on female” discriminatory behaviour. If a male worker is being sexually harassed at work then he equally has the right to be protected from unlawful discrimination protection under the Equality Act 2010.
Let’s take another example. Violet is still working in Danny’s Burgers but has decided to pursue a claim for age-related harassment. Neither Donald nor the management at Danny’s Burgers are happy about this. After work one day Donald gets a bit drunk and tries to “kiss and make up” with Violet. He sits next to her at the bar, slides his arm around her and says “I can show you a great time if you would just drop the case”. To emphasise his point he squeezes her bottom. This would clearly be a case of sexual harassment.
Non-submission harassment occurs where a worker is treated less favourably than other workers because they have submitted to or have failed to submit to sexual harassment or harassment related to sex or gender reassignment which has the purpose of creating an intimidating, hostile, degrading, humiliating or offensive environment or violating the worker’s dignity.
Let’s use Violet as an example again. She has roundly rejected Donald’s advances and has complained to management about his behaviour. HR says that they’re dealing with it. However, Donald has been acting weirdly ever since. Violet turns up for work one day and finds that she has only been given 20 hours work that week instead of the usual 40. She asks why and Donald just smirks at her. Violet suspects that it has something to do with her turning down Donald’s advances. Violet may have a claim for non-submission harassment here. She has turned down Donald’s proposition and is being in a manner which is supposed to intimidate her.