What is workplace harassment and how is it different from bullying?
Sometimes people refer to bullying, harassment and discrimination interchangeably to describe unwanted behaviour in the workplace. In UK law, these terms have distinct meanings. It’s important to understand what type of mistreatment you’re experiencing at work so you can gather the best evidence to defend yourself.
Bullying at work
Bullying refers to a wide range of behaviours and treatments which may be:
- physically or emotionally harmful.
There’s no legal definition of bullying and although it’s completely unacceptable, bullying isn’t always against the law. However, if the bullying is so bad that you have had to leave your job, and if your employer hasn’t done anything to help you, then you may be able to claim for constructive dismissal. Also, in many situations, the bullying behaviour will actually amount to harassment.
Harassment at work
Harassment is when the bullying behaviour is linked to one of 7 of the 9 protected characteristics:
- gender reassignment
- religion or belief
- sexual orientation.
The law of harassment doesn’t cover marriage and civil partnership or pregnancy and maternity. If your unfair treatment relates to one of those characteristics, you may be experiencing direct discrimination.
Harassment is defined by section 26 of the Equality Act 2010. A person (A) harasses another (B) if they engage in unwanted conduct related to one of these 7 characteristics. The unwanted conduct must have the purpose or effect of:
- (1) violating B’s dignity or
- (2) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
So, even if someone didn’t intend to humiliate you, if you feel humiliated, you might have a case for harassment.
When looking at the purpose or effect of unwanted behaviour, the perception of B, the circumstances of the case, and what is reasonable must be taken into consideration.
The law protects you from harassment even if you didn’t ask for the behaviour to stop or tell a superior about it. You won’t be penalised because you haven’t spoken up earlier.
You don’t have to have the protected characteristic which the harassment relates to for you to be affected by it. For example, the Explanatory Notes to the legislation say: “A white worker who sees a black colleague being subjected to racially abusive language could have a case of harassment if the language also causes an offensive environment for her.”
If you’re being poorly treated because you’ve previously made or supported a complaint of harassment or discrimination, this could be victimisation; you may find it useful to read our article about victimisation.
Examples of harassment
Harassment can be a serious one-off incident or repeated behaviours. It can be written or spoken words, jokes, physical conduct, visual content, gestures or exclusion.
Common examples of harassing behaviour include:
- belittling someone
- challenging everything someone says
- destroying property
- remarks about a person’s body or clothing
- spreading gossip about someone on social media
- making excessive demands.
Sexual harassment in the workplace
Sexual harassment is different from harassment related to the protected characteristic of sex. Sexual harassment is unwanted conduct of a sexual nature:
- questions about someone’s sex life
- sexual comments or jokes
- remarks about someone’s body
- unwanted touching
- sexual assault.
For example, if Taylor comments that Agata, a woman, should be wearing a skirt to work because he believes women should wear skirts, this is potentially harassment based on the protected characteristic of sex.
If Taylor tells Agata that he wants her to wear a skirt because he wants to look at her attractive legs, this is potentially sexual harassment. It’s possible to experience both types of harassment at the same time.
To be sexual harassment, the unwanted behaviour must still have the purpose or effect of
- (1) violating someone’s dignity or
- (2) creating an intimidating, hostile, degrading, humiliating or offensive environment.
Sexual harassment can happen to people of any gender identity by people of any gender identity.
Harassment based on the reaction to sexual harassment
There is a third type of harassment, which is a subtly different form of sexual harassment.
This applies where someone is treated less favourably because they have either submitted to or rejected sexual harassment, or harassment related to sex or gender reassignment. The Explanatory Notes to the legislation give this example: “A shopkeeper propositions one of his shop assistants. She rejects his advances and then is turned down for promotion which she believes she would have got if she had accepted her boss’s advances. The shop assistant would have a claim of harassment.”
What to do if you’re being harassed
If you're being harassed at work, it’s a good idea to keep a diary of the behaviour and how it made you feel on each occasion. Your feelings are central to the legal test for harassment, so keeping a diary will help evidence this. As hard as it may be, try not to return any bullying or harassing behaviour.
Review your employer’s bullying and harassment policy, if they have one. You might want to have an informal discussion about what’s happening with your supervisor / human resources before raising a formal grievance.
At Valla, we understand that experiencing harassment in what should be a safe environment has a huge impact on someone’s health and wellbeing. That’s why we offer the tools to help you build your case. Sign up for your free account.