Career Focus

Harassment at work

BMJ 1998; 317 doi: https://doi.org/10.1136/bmj.317.7163.2 (Published 03 October 1998) Cite this as: BMJ 1998;317:S2-7163

At the far side of sexual and racial discrimination lie harassment and bullying. Solicitor Elizabeth Gillow advises on recognising and tackling these unacceptable behaviours in the workplace

  1. Elizabeth Gillow, Solicitor
  1. Eversheds, Birmingham

    Sexual harassment, although the most publicised form, is not the only form harassment can take. Harassment or bullying can be based on a person's sex, race, disability, sexual orientation, transsexuality, age, or religion, or it might simply be an abuse of the power that one person has over another. This article looks at the different forms harassment (including bullying) can take, what to do if you are a victim of harassment, and the steps that an organisation can take to prevent, or at least limit, harassment in the workplace.

    Procedure for harassment claims

    Informal procedure

    • If possible resolve the problem informally by speaking to the harasser

    • Instead of speaking to the alleged harasser, you may prefer to put this in writing

    • You could ask a colleague or friend to speak or write to the alleged harasser on your behalf

    • If the conduct continues ask your manager to speak to the harasser and ask him or her to stop

    • If the conduct still continues you should consider taking formal action

    • Keep a written record of the incidents

    Formal procedure

    • To be used if informal procedure has failed or is inappropriate

    • Raise the matter formally with your supervisor (or someone else in authority if your supervisor is the alleged harasser), who will report it to the appropriate person

    • Put your complaint in writing

    • The matter will be investigated and witnesses interviewed

    • A decision will be taken as to whether further action is necessary

    A disciplinary hearing may take place

    Types of bullying behaviour*

    • Making life difficult for those who have the potential to do the bully's job better than the bully

    • Refusing to delegate

    • Shouting at staff

    • Persistently picking on people (either in public or in private)

    • Blocking promotion

    • Deliberately ignoring or excluding individuals from activities

    • Overloading a person with work then reducing the deadlines (that is, setting someone up to fail)

    • Setting out to make a person seem incompetent

    • Making someone the butt of jokes

    *Based on UNISON's guidelines in Bullying At Work

    The traditional picture of harassment is that of a senior male employee leering at or touching inappropriately a junior female employee. And there is also the “Sleep with me, and I'll promote you” type of harassment (sometimes known as quid pro quo harassment), which is still rife in some organisations (especially American politics). However, case law has shown that sexual harassment may be perpetrated by women against men, by women against women [1] and men against men [2] (same sex harassment), and by men and women against transsexuals.[3]

    There is no legislation in the United Kingdom that defines sexual or racial harassment. It is a form of sex or race discrimination, and any claim of sexual or racial harassment must be brought within the remit of the Sex Discrimination Act 1975 or the Race Relations Act 1976. The requirements for a harassment claim contained within the respective acts are that the claimant must have been

    • Treated less favourably

    • On the grounds of sex or race

    • Resulting in a detriment

    A common way of examining the less favourable treatment is to ask whether, but for the individual's sex or race, he or she would have been treated in the particular, less favourable, way. Thus, in a claim of sexual harassment can it be said that, but for the fact that the claimant was a woman, she would not have been sexually harassed? Or is it the reality that this unpleasant treatment was not truly less favourable, in the sense that it was directed at all or several individuals regardless of their sex?

    Examples of harassment

    Sexual harassment can be easy to recognise, such as the persistent comment from a consultant, “Those theatre blues really do suit you,” accompanied by a pat on the bottom (experience of a senior house officer, now a general practitioner, when she was training in obstetrics and gynaecology). But it can take a more subtle form, as shown by the case of Porcelli v Strathclyde Regional Council.[4]

    Ms Porcelli was employed as a laboratory technician. Two male colleagues disliked her and wanted to force her to apply for a transfer or to leave, so they pursued a course of harassment towards her which included deliberately staring at her as she walked around the room; watching her as she climbed a ladder to reach jars stored in a cupboard and commenting, “If you can't climb a ladder you shouldn't be in the fucking job”; picking up a glass rod holder shaped like a penis and asking her whether she had any use for it; comparing her, openly and in front of her, to a nude model in a newspaper; and deliberately brushing against her.

    The Employment Appeal Tribunal made it clear in its judgment that sexual harassment could take many forms. It said: “We do not find it necessary to define the expression ‘sexual harassment' in precise terms. Unwelcome acts which involve physical contact of a sexual nature are obviously included. Such acts if proved would also amount to offences at common law such as assault or indecent assault. We consider that there can also be conduct falling short of such physical acts which can fairly be described as sexual harassment.”

    There are many claims of both sexual and racial harassment brought on the basis of what one person has said to another. The defence often put forward is that it was just workplace banter. Workplace banter does, of course, take place to a greater or lesser extent in all organisations, and life could be dull without it. But there is a fine dividing line between workplace banter and harassment.

    For example, Mr Quaid worked in a fish processing factory where everyday banter was fairly robust. He claimed that throughout his employment he had been subjected to racial insults such as “black bastard” and “nigger.” His employers accepted that racist comments were made regularly but that they formed part of the everyday banter and that Mr Quaid could “give as good as he got.” The tribunal concluded that Mr Quaid had been racially discriminated against as, although other employees may also have been insulted, his treatment was clearly”on racial grounds“ and he would not have been called such things if there had not been a racial element behind the terms used. He was awarded compensation of £8219 including £5000 for injury to feelings.[5]

    It is also clear that a single remark or incident can, if sufficiently serious, amount to sexual harassment. In the case of Insitu Cleaning Company v Heads, [6] Ms Heads was greeted with the remark “Hiya big tits” by the son of two of the directors of the company, who was himself a manager. The company put forward the defence that this comment was not less favourable treatment based on sex when an equally offensive comment could have been made to a man about his bald head such as “Hiya baldie.” The Employment Appeal Tribunal rejected this argument, saying that: “A remark by a man about a woman's breasts cannot sensibly be equated with a remark by a woman about a bald head or beard. One is sexual the other is not.”

    The fine dividing line between banter and harassment depends partly on what was said and how it was received and partly on who said it and to whom. When it is a person in a position of authority speaking to someone for whom they have responsibility the situation is more heavily charged, especially if the comment was made in front of others. The same applies to bullying. For example, if medical students are ritually humiliated by their consultant this could cease to be workplace banter and become instead a serious case of bullying.

    Dealing with harassment

    So what should you do if you are being harassed or bullied at work? Firstly, find out whether your employer has a harassment policy&emdash;it may be contained within an employee handbook or an equal opportunities policy. If your organisation has counsellors for this purpose, consider speaking to one in confidence. Alternatively, consider speaking to a colleague. Keep a written record of any incidents of harassment, including the date, time, and place, whether any witnesses were present, and what effect the harassment had on you.

    Liability in sexual and racial harassment claims will lie with the employer if the harassment took place “in the course of employment.” The test for vicarious liability for discrimination purposes is much wider than that for personal injury purposes, and it is hard to succeed in an argument that an employee was not acting in the course of his or her employment when he or she committed an act of sexual or racial harassment at work. An employer's best defence to a harassment claim is that it took reasonably practicable steps to prevent the harassment occurring. This will include drafting and implementing a harassment policy and training all employees in how to recognise and deal with harassment.

    Employers have for a long time been aware that they may be liable for an injury suffered by an employee at work. It is now clear that employers can be liable for a psychological injury suffered by their employees as well as a physical injury.[7] Bloomsbury Health Authority was sued by Dr Johnstone [8] when he was a senior house officer for a declaration that he could not be required to work “for so many hours in excess of his standard working week as would foreseeably injure his health,” even if this was less than the 48 hours overtime stated in his contract. He also sued for compensation for the damage he had suffered in the form of symptoms of stress and depression. The case never went to a full trial as Dr Johnstone chose to settle the matter, and so the law in this area remains uncertain. However, if junior doctors do become ill as a result of too much work or a bullying management style, their employer may find itself at the receiving end of an expensive law suit with the financial implications and adverse publicity that go with it.

    Elizabeth Gillow, Solicitor, Eversheds, Birmingham

    Elizabeth Gillow is coauthor of Harassment at Work, published by Jordans price £32.50. To obtain a copy telephone Jordans on 0117 923 0600.

    References

    1 Johnson and Garbutt v Gateway Food Markets Ltd 4079/90 & 3041/90.

    2 Gates v Security Express Guards [1993] 45142/92.

    3 Reed v Chessington World of Adventures [1997] IRLR 556.

    4 Porcelli v Strathclyde Regional Council [1984] IRLR 467.

    5 Quaid v L Williamson (Shetland) Ltd t/a Sheltie [1996] 60642/95.

    6 Insitu Cleaning Company v Heads [1995] IRLR 5.

    7 Walker v Northumberland County Council [1995] IRLR 35 QBD.

    8 Johnstone v Bloomsbury Health Authority [1991] IRLR118.

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