RACIAL SEXUAL and RELIGIOUS HARASSMENT
(The Law Generally)

The Law Generally ,   Equality Act 2010,    Protection from Harassment Act 1997,       Homophobic Harassment,       Religious Harassment,       Racially and Religiously Aggravated Crimes

 

In itself harassment of any person because of their sex, their sexual orientation or because they are members of a different race, religion or culture is no different to any other form of harassment and can be dealt with under all existing harassment legislation.

 

For example harassment of a group or a family because of their race, religion or sexual orientation can justify the making of an anti-social behaviour order under s1 of The Crime and Disorder Act 1998 or as grounds for eviction under the Housing Act 1996. In addition it could be used as evidence in prosecutions under the Protection from Harassment Act 1997 or under the common law of public nuisance. If the Harassment is Racially or Religiously motivated then it can be specifically prosecuted as Racially or Religiously Aggravated Harassment.

A person or group who are being harassed because of their race, their religion their sex or their sexual orientation can also apply for injunctions and damages under the Protection from Harassment Act 1997. There are two ways in which this can be done either by suing the Harasser directly or, if the harassment occurs when the harasser is in work, by suing his or her employer on the basis of the concept of vicarious liability. However most forms of Harassment in the work place  will be dealt with under  anti-discrimination harassment legislation.


RACIAL SEXUAL and RELIGIOUS HARASSMENT •
( Equality Act 201 - Discrimination Law )

The Law Generally       Equality Act 2010,       Protection from Harassment Act 1997,       Homophobic Harassment,       Religious Harassment,    Racially and Religiously Aggravated Crimes

Cases of Racial or Sexual harassment have been commonplace for a number of years even though there has been no legislation specifically dealing with such harassment. What has happened is that Courts and Tribunals have regarded Sexual and Racial harassment as a form of Discrimination and therefore contrary to either the Sex Discrimination Act 1975 or the Race Relations Act 1976. The basis on which this is done is that the victim of the harassment is regarded as having been subject to a "Detriment" because of their sex or race.

 

This use of Discrimination law to deal with problems of Harassment is discussed and explained in the article 'Harassment Discrimination in Interpretation by Adele Sinclair 1 WebJCLI 1998. A leading case on the subject is Driskel v Peninsula Business Services which lays down the general principles Courts and Tribunals should follow in dealing with Harassment cases. The most important principle is that it is the totality of the behaviour and its effect which is the overriding point a court should consider rather than concentrating on the individual incidents in isolation. This point is in fact a crucial principle in dealing with all types of Harassment cases.

 

The European Union has defined Sexual Harassment as

"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”

This definition was accepted by the government and was added to all forms of Discrimination legislation.  The various separate Anti-discrimination laws have now all been unified into the Equality Act 2010 and claims of  Harassment in Discrimination law cases will in future will be decided by Tribunals applying a standard definition of harassment set out in section 26 of this Act.


RACIAL SEXUAL and RELIGIOUS HARASSMENT •
( Protection from Harassment Act 1997 )

The Law Generally       Equality Act 2010,        Protection from Harassment Act 1997,       Homophobic Harassment,       Religious Harassment,      Racially and Religiously Aggravated Crimes

 

Though most claims for Harassment, particularly in the workplace, will be dealt with under discrimination law The Protection from Harassment Act 1997 can be used also. By proceeding under the Act a victim could obtain an Injunction preventing future harassment and in addition claim damages under section 3(2) of the act which allows civil courts to award damages to victims of harassment for

(amongst other things) any anxiety caused by the harassment and any financial loss resulting from the harassment”

The Time Limit for bringing a claim for damages under section 3 of The Protection from Harassment Act 1997. is 6 years which is far longer than the 3 month time time limit for Discrimination claims.

 

If someone is harassed at their place of work they could decide to sue their employer for damages using the Protection from Harassment Act 1997 rather than by going to an Employment Tribunal. In some circumstances this route could be simpler particularly if there could be technical arguments as to whether they were an employee or a self employed contractor. Those employment law technicalities would not be relevant in any legal claim under the act. All that would be relevant is the fact that the harassment occurred, the damage it caused and whether the employer was vicariously liable for permitting, or not preventing the Harassment. The Law relating to Vicarious Liability was clarified and extended by the House of Lords in the case of Lister v Hesley Hall Ltd [2001] UKHL 22 and following this in the case of Majrowski v. Guy's and St. Thomas' NHS Trust [2006] UKHL 34  the House of Lords held that an Employer would be vicariously liable under the Protection from Harassment Act 1997 for damages arising from Harassment of an employee by other employees.  A claim under the 1997 Act could also be appropriate in cases of Homophobic or Religious Harassment occurring prior to 2nd December 2003 which is the date when specific regulations were brought in dealing with Religious or Homophobic Harassment   and Discrimination.


RACIAL SEXUAL and RELIGIOUS HARASSMENT •
( Homophobic Harassment )

The Law Generally       Equality Act 2020,       The Protection from Harassment Act 1997,       Homophobic Harassment,       Religious Harassment,     Racially and Religiously Aggravated Crimest

 

Prior to 2nd December 2003 there was no legislation dealing specifically with Homophobic Discrimination or Harassment. There had been many attempts to extend the wording of the Sex Discrimination Act 1975 to cover discrimination on the basis of sexual orientation but such attempts were rejected by the House of Lords in the case of Pearce v Governing Body of Mayfield School [2003] UKHL 34 and by the Court of Appeal [2001] EWCA Civ 1347].

 

This situation was changed by the The Employment Equality (Sexual Orientation) Regulations 2003 which applied to behaviour FROM the 2nd December 2003. The regulations prevent Discrimination on the basis of a persons “Sexual Orientation” which is defined (Reg 2(1) as meaning

sexual orientation towards -
(a) persons of the same sex;

Under Reg 5

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.

 

It should be noticed that this definition cuts both ways. It is just as unlawful for a homosexual or lesbian to harass or discriminate against a “straight” person as it is for a straight person to discriminate against or harass a homosexual or lesbian person.

 

The various separate Anti-discrimination laws have now all been unified into the Equality Act 2010


RACIAL SEXUAL and RELIGIOUS HARASSMENT •
( Religious Harassment )

The Law Generally       Equality Act 2010,       Protection from Harassment Act 1997,       Homophobic Harassment,       Religious Harassment,    Racially and Religiously Aggravated Crimes

Prior to 14th December 2001 there was no legislation dealing specifically with Harassment on the grounds of Religion though such harassment would have been contrary to the general Criminal Law. On 14th December specific Religiously Aggravated Criminal Offences came into force including an offence of Religiously Aggravated Harassment. For the purposes of these offences "Religious Group" is defined as

"a group of persons defined by reference to religious belief or lack of religious belief."

and this wording can also be used as the basis for a claim for damages and/or an Injunction under the Protection from Harassment Act 1997.

 

On the 2nd December 2003 The Employment Equality (Religion or Belief) Regulations 2003 came into force and applied to behaviour FROM that date. The regulations prevent Discrimination on the basis of a persons “religion or belief” which is defined (Reg 2(1) as meaning

any religion, religious belief or similar philosophical belief “

Under Reg 5

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 various separate Anti-discrimination laws have now all been unified into the Equality Act 2010


 

RACIAL SEXUAL and RELIGIOUS HARASSMENT •
( Racially and Religiously Aggravated Crimes)

The Law Generally       Equality Act 2010,       Protection from Harassment Act 1997,       Homophobic Harassment,       Religious Harassment,      Racially and Religiously Aggravated Crimes

The Crime and Disorder Act 1998 created a new category of ‘Racially Aggravated Criminal Offences’. The definition of ‘Racially Aggravated’ is set out in section 28 of the Act and sections 29 to 32 increase the maximum possible sentence for a range of criminal offences when those offences are committed in a racially aggravated way. "Racially Aggravated” being defined as follows

(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial group; or
 

For example the maximum possible sentence for a ‘normal’ offence of criminal harassment contrary to section 2 of the Protection from Harassment Act 1997 is 6 months imprisonment. Section 32 of the Crime and Disorder Act 1998 however raises the potential sentence to 2 years when the offence of criminal harassment is committed in a racially aggravated way. Other Harassment offences which have had a racially aggravated variant created include Sections 5, 4 and 4A Public Order Act 1986 and Section 4 of the Protection from Harassment Act 1997 where the potential maximum sentence is raised from 5 to 7 years imprisonment.

 

Section 39 of the Anti-terrorism, Crime and Security Act 2001 amended the Crime and Disorder Act so as to change the existing Racially Aggravated Criminal Offences into 'Racially or Religiously Aggravated Criminal Offences". . An offence becomes “Religiously Aggravated” where the hostility is based on the victims membership of a religious group. "Religious Group" is defined as

"a group of persons defined by reference to religious belief or lack of religious belief."

and is therefore potentially very wide ranging. As worded Atheists classify as a religious group as do satanists, pagans, and believers in the second coming of Elvis as well as members of the more "mainstream" religions.

Besides its relevance to criminal law the creation of the religiously aggravated harassment offence will have implications for the use of Section 3 of the Protection from Harassment Act 1997 in claims for damages and in claims for injunctions. Claims based on allegations that particular behaviour is harassing to an individual or a group because of their religious beliefs will have to be treated with greater respect than might previously have been the case and does mean that the the Protection from Harassment Act can be used in situations involving religious harassment where the use of discrimination legislation may be inappropriate or out of time.

 

An Article about Racially Aggravated Offences
Home Office Study of Racially Aggravated Offences

My Website www.ReligionLaw.co.uk which deals with Religion and Law

Articles about Religiously Aggravated Offences

E-mail     NEIL ADDISON     at     Harassment Law  ·