Definitions of Harassment in Discrimination Law
EQUALITY ACT 2010
The Equality Act 2010 came into force on 1st October 2010 and section 26 has introduced a standard definition of harassment for use in Discrimination cases. This new definiton is still based on the European Union defintion and replaces the other definitions (shown below) which were previously in use for the separate forms of Dicrimination.
Equality Act 2010 section 26
Harassment
(1) A person (A) harasses another (B)
if—
(a) A engages in unwanted conduct related to a relevant
protected
characteristic, and
(b) the conduct has the purpose or effect
of—
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile,
degrading, humiliating or
offensive environment for B.
(2) A also harasses
B if—
(a) A engages in unwanted conduct of a sexual nature, and
(b) the
conduct has the purpose or effect referred to in subsection (1)(b).
(3) A
also harasses B if—
(a) A or another person engages in unwanted conduct of a
sexual nature or
that is related to gender reassignment or sex,
(b) the
conduct has the purpose or effect referred to in subsection
(1)(b),
and
(c) because of B’s rejection of or submission to the conduct,
A treats B less
favourably than A would treat B if B had not rejected or
submitted to
the conduct.
(4) In deciding whether conduct has the effect
referred to in subsection (1)(b), each
of the following must be taken into
account—
(a) the perception of B;
(b) the other circumstances of the
case;
(c) whether it is reasonable for the conduct to have that
effect.
(5) The relevant protected characteristics are—
age;
disability; gender reassignment; race; religion or
belief; sex; sexual orientation
EU COUNCIL DIRECTIVE 2000/78/EC
3. Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.
EU COUNCIL DIRECTIVE 2002/73/EC
2. For the purposes of this Directive, the following definitions shall apply:
harassment: where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment,
sexual harassment: where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.
These EU definitions of Harassment were incorporated into British Discrimination Law by the following statutory instruments (now all replaced by the Equality Act 2010)
The Race Relations Act 1976 (Amendment) Regulations 2003,
2003 No. 1626, in force 19th July 2003
(this regulation added the following new section to the Race Relations Act 1976 - now repealed)
3A
Harassment
(1) A person subjects another
to harassment in any circumstances relevant for the purposes of any
provision referred to in section 1(1B) where, on grounds of race or ethnic or
national origins, 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."
The Employment Equality (Sex Discrimination) Regulations 2005
2005 No. 2467, in force 1st October 2005
(this regulation added the following new section to the Sex Discrimination Act 1975 - now repelaed)
4A Harassment, including sexual
harassment
(1) For the purposes of this Act, a person
subjects a woman to harassment if
(a) on the ground of her sex, he engages in unwanted conduct that has the purpose or effect—
(i) of violating her dignity, or
(ii) of
creating an intimidating, hostile, degrading, humiliating or offensive
environment for her,
(b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect—
(i) of violating her dignity, or
(ii) of
creating an intimidating, hostile, degrading, humiliating or offensive
environment for her, or
(c) on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b), he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct.
(2) Conduct shall be regarded as having the
effect mentioned in sub-paragraph (i) or (ii) of subsection (1)(a) or (b) only
if, having regard to all the circumstances, including in particular the
perception of the woman, it should reasonably be considered as having that
effect.
(3) For the purposes of this Act, a person ("A") subjects another
person ("B") to harassment if—
(a) A, on the ground that B intends to undergo, is undergoing or has undergone gender reassignment, engages in unwanted conduct that has the purpose or effect—
(i) of violating B's dignity, or
(ii) of
creating an intimidating, hostile, degrading, humiliating or offensive
environment for B, or
(b) A, on the ground of B's rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a), treats B less favourably than A would treat B had B not rejected, or submitted to, the conduct.
The Disability Discrimination Act 1995 (Amendment) Regulations 2003
2003 No 1673, in force 1st October 2004
(this regulation added the following new section to the Disability Discrimination Act 1995 - now repealed)
3B Meaning of "harassment"
(1) For the purposes of this
Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person's
disability, he engages in unwanted conduct which has the purpose or effect
of -
(a) violating the disabled 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 referred to in paragraph (a) or (b) of subsection (1) only if, having
regard to all the circumstances, including in particular the perception of the
disabled person, it should reasonably be considered as having that
effect.".
The Employment Equality (Sexual Orientation) Regulations 2003,
2003 No 1661, in force 1st December 2003 - (now repelaed)
5 Harassment on grounds of sexual orientation
(1) For the purposes of these Regulations, a person ("A") subjects another person ("B") to harassment where, on grounds of sexual orientation, A engages in unwanted conduct which has the purpose or effect of -
(a) violating B's dignity; or
(b) creating
an intimidating, hostile, degrading, humiliating or offensive environment for
B
(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.
The Employment Equality (Religion or Belief) Regulations 2003.
2003 No 1660, in force 2nd December 2003 - (now repealed)
5 Harassment on
grounds of religion or belief
(1) For the purposes of these Regulations, a person
("A") subjects another person ("B") to harassment where, on grounds of religion
or belief, A engages in unwanted conduct which has the purpose or effect
of -
(a) violating B's dignity; or
(b) creating
an intimidating, hostile, degrading, humiliating or offensive environment for
B.
(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.
The Employment Equality (Age) Regulations 2006
2006 No 1031, in force 1st October 2006 - (now repealed)
6 Harassment on grounds of age
(1) For the purposes of these Regulations, a person ("A") subjects another person ("B") to harassment where, on grounds of age, A engages in unwanted conduct which has the purpose or effect of—
(a) violating B's dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.
Email Neil Addison at Harassment Law