What can an employee do who is harassed by a fellow worker because of his/her sexual orientation ? ie a workplace harassment situation.
This employee can have been subject to homophobic abuse, disparaging remarks or intimidating behaviour etc.
Employers really need to take a hold of matters of this nature, have policies and procedures in place communicated with all staff members, and act on notice of any discrimination.
Employers are potentially liable for acts of their employees amounting to harassment of a fellow employee.
What is Discrimination ?
The law prohibiting discrimination of employees based on their sexual orientation is set out in S.6 of the Equality Act 1998(as amended) which states that discrimination on the basis of their sexual orientation will be considered to have occurred where one person is treated less favourably than another is, has been or would be treated.
What is Workplace Harassment ?
Harassment at work based on this ground is prohibited by S. 14(A) of he Equality Act 2004.
S.14A(7) of this Act defines harassment as:
‘’Any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating’’.
So, in a case involving workplace harassment it will be necessary to assess before taking a legal case:
- Was the person an employee ?.
- If the employee was subjected to harassment as defined by the Act ?.
- Was the employee the recipient of discriminatory treatment based on their sexual orientation which is connected to their conditions of employment ?.
- Are there facts of significant significance to establish a good case ?.
- Is there a connection between the treatment at work the and sexual orientation of the employee ?.
- What steps did the employer take to prevent the harassment in the first place ?.
- What policies and procedures did the employer have regarding harassment ?.
- Did the employer communicate such policies to staff members ?.
- What did the employer do after they were notified harassment took place ?.
What is Vicarious Liability
What happens if it is a fellow worker that is the cause of the harassment and not the employer.
The following is a legal principal which deals with this issue.
Vicarious liability is defined by s. 15 of the Employment Equality Act 1998 as:
‘’Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval’’.
Disclaimer – Workplace Harassment Article
Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.
Legal advice should be sought from a solicitor prior to relying on anything in this article.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.
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