Workplace harassment is covered under the Equality Act 2010 and, depending on the circumstances, may also be a separate criminal and civil offence.
To harass a colleague under the Equality Act means to engage in unwanted conduct related to any ‘protected characteristic’, including age, sex, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief and sexual orientation, which has the purpose or effect of either:
- violating their dignity; or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
The recipient’s perception, other circumstances at the time and whether it is reasonable for the conduct to have that effect are also considered.
Is there a culture of hypersensitivity at work?
You may have seen that an Employment Tribunal claim was recently dismissed with the judge warning of ‘hypersensitivity’ in workplace discrimination cases.
In that case, the former employee made several allegations, including that she had suffered from harassment when she rejected a relocation abroad for personal reasons and, in querying that, it was put to her: ‘You are not married, you don’t have children and you do not have a boyfriend’.
While the Tribunal accepted that the discussion was ‘awkward’ and had caused shock and discomfort, it found that the same would have been asked of a male employee and also that the issue had been relevant ‘in the context of a discussion about possible relocation where the company might be responsible for relocation costs including costs relating to the employee’s family’.
Context may be king
The takeaway is that the context in which something is said at work may be very important. However, even if the Tribunal may be on side, it is advisable for staff always to take care in what is said (which can hopefully be achieved through policy and training) as a lot of time, costs and uncertainty could otherwise follow.
In terms of whether there is a culture of hypersensitivity at work, there may be some truth in this remark. Therefore, employers are advised to take care in their processes, but not to shy away from taking appropriate action if, for example, there are true performance or conduct concerns.