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.

(4) Conduct shall be regarded as having the effect mentioned in sub-paragraph (i) or (ii) of subsection (3)(a) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.
(5) Subsection (1) is to be read as applying equally to the harassment of men, and for that purpose shall have effect with such modifications as are requisite.
(6) For the purposes of subsections (1) and (3), a provision of Part 2 or 3 framed with reference to harassment of women shall be treated as applying equally to the harassment of men, and for that purpose will have effect with such modifications as are requisite.

 

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