What is harassment and what is not?

Harassment is both a civil and criminal offence and falls under various legislation.  

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What constitutes Harassment  

Under the Protection from Harassment Act 1997, harassment will occur where the behaviour causes alarm or distress. Individuals must not pursue a course of conduct that: 

• Amounts to harassment of another 
• The person knows or ought to have known amounted to harassment of another. 

To qualify as harassment there has to have been a course of conduct against the victim, which means: 

• One person performing actions on at least two occasions. 
• Two or more people performing at least one action each. 

To succeed, there needs to be evidence of: 

• Harassment 
• The conduct being targeted at an individual 
• The conduct was calculated to cause alarm or distress 
• The conduct was oppressive and unreasonable 

It is possible to harass an individual by proxy by harassing those connected to them knowing this will affect the individual as well as those that are being targeted by the conduct. This can be done by harassing the person’s: 

• Family 
• Friend 
• Colleagues 

Crime and Disorder Act 1998 

Cases of harassment that stem from racial or religious hatred are covered by the Crime and Disorders Act 1998. The Act states that the harassment needs to have been racially or religiously aggravated.  

Domestic Violence, Crime and Victims Act 2004 

Where someone needs protection from ongoing harassment, it is possible under the Domestic Violence, Crime and Victims Act 2004 for the court to make a restraining order against a defendant, even where they have been acquitted. 

Equality Act 2010 

Harassment is regarded as unlawful discrimination under the Equality Act 2010 if it relates to a protected characteristic, which is: 

• Age 
• Disability 
• Gender reassignment 
• Race 
• Religion or beliefs 
• Sex 
• Sexual orientation 

Marriage and civil partnership as well as pregnancy and maternity do not qualify as protected characteristics in relation to harassment. 

Harassment in this context is defined as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.” It is therefore irrelevant that the person did not mean to offend or intimidate the other person where the effect of the actions has this effect. 

The court will have to determine whether it was reasonable for the conduct to have the effect required to qualify for harassment. In deciding whether the conduct has the above effect, the court will look at the following factors: 

• The perception of the victim 
• The circumstances of the case 
• If it is reasonable that the conduct had this effect 

In this case, there does not need to be a course of conduct and a one off incident is enough qualify as harassment.  

What is Sexual harassment? 

Harassment can be regarded as sexual where the unwanted conduct or behaviour is sexual in nature. The parties can be of the same sex or opposite sex. It is also possible for a person to sexually harass someone where the unwanted sexual conduct is related to gender reassignment or sex. The person does not need to have previously complained about the conduct for it to be unwanted. Sexual harassment includes behaviour such as: 

• Unwanted touching, hugging or kissing. 
• Sending messages or emails that are sexually explicit. 
• Posting sexual content on social media. 
• Rumours about a person that are sexual. 
• Discussions or questions about a person’s sex life. 
• Comments, jokes, gestures photos or posters that are sexual. 
• Suggestive looks. 
• Offering something in return for a sexual act. 

The effect of the harassment is subjective and it does not matter if there was no intention to create an intimidating, hostile, degrading, humiliating or offensive environment for that person- what matters is how they viewed it. 

WHAT IS HARASSMENT AT WORK? 

Under the Equality Act 2010, an employer can be held liable for harassment in relation to one employee by another. In order to protect themselves, the employer needs to make sure that they have taken all reasonable steps to prevent employees from harassing their colleagues. 

Workplace harassment, including sexual harassment, is something that has been widely covered in the news in recent years and more employees are raising issues they have encountered in the workplace.  

DEFENCES 

There are three main defences in relation to an allegation of harassment: 

1. The conduct was for the purpose of preventing or detecting a crime. 
2. The conduct was pursued under a law or enactment to comply with any condition or requirement imposed by anyone under that enactment. 
3. In the particular circumstances, the conduct is held to be reasonable.