Protection from harassment

Whilst the Equality Act 2010 (EA 2010) provides a mechanism for employees to pursue claims of harassment against both the harasser as an individual and/or the employer (on grounds of vicarious liability), the harassment must be related to a relevant protected characteristic namely, age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

The lack of a linkage between the harassment and the protected characteristic effectively precludes the employee from pursuing an harassment claim under the EA 2010 and, accordingly, provides a crevice for the employer to escape liability for the actions of the perpetrator, its employee.

Harassment under common law

An employee might still have a valid cause of action at common law for victimisation and/or harassment against his/her employer, as might a third party who was not a fellow employee:

• by establishing primary liability under the contract of employment and/or under common law principles of negligence for the employer’s failure to protect him against victimisation and/or harassment causing him/her physical or psychiatric injury (Waters v Commissioner of Police of the Metropolis); or
• by establishing secondary, that is, vicarious liability for a fellow employee’s acts of victimisation and/or harassment committed in the course of employment causing him/her such injury.

Employment claims based on Protection from Harassment Act?

The Protection from Harassment Act 1997 (PHA 1997) has, in recent times, paved the way for an alternative cause of action for employees experiencing harassment in the workplace, creating an additional level of liability. The PHA 1997 does not specifically define harassment but its purpose is to protect victims of harassment, whatever form the harassment takes, wherever it occurs and whatever its motivation.

A remedy of a civil claim for harassment under the PHA 1997 does remain open for employees in all circumstances.

Advantages and disadvantages of bringing a claim under the Protection from Harassment Act

• the limitation period for a claim under the PHA 1997 is 6 years, which is significantly longer than the 3 months prescribed under the EA 2010 for harassment claims or the ordinary 3-year limitation period for personal injury claims;
• the claimant/victim need only prove that the harassment caused alarm or distress under the PHA 1997, a much lesser burden and threshold than the constituent elements of an harassment claim under the EA 2010. Additionally, a personal injury claim requires a recognisable psychiatric condition be established, which is much more cumbersome; and
• there is no need to show a causal connection between the harassment and any characteristic under the PHA 1997, as compared to a claim for harassment under the EA 2010, which must relate to a protected characteristic.
• the claimant/victim must show a ‘course of conduct’ for the purposes of establishing a harassment claim under the PHA 1997. However, under the Equality Act, an isolated incident will be deemed sufficient: there is no requirement to show it occurred on two or more occasions;
• a claim under the PHA 1997 must be brought in the civil courts, which is generally cost bearing, whereas an EA 2010 claim brought in the employment tribunal is not generally cost bearing; and
• under the EA 2010, employers can escape being held vicariously liable for harassment of their employees, if they can demonstrate that they took reasonably practical steps to prevent it happening. However, no such defence exists under the PHA 1997.

If you would like to discuss your employment situation or would like a review of your employment contract then call us today in confidence on 03456 381381, or email your details to employment@ibblaw.co.uk.