Harassment: Reminder of the scope of test to be applied
This recent Employment Tribunal decision in the UK serves as an important reminder that in cases of harassment, the test applied is that the conduct complained of ‘related to’ [a protected characteristic] rather than the ‘because of’ [a protected characteristic] test which is applied in cases of direct discrimination. This provides the Tribunal with a much wider ambit to find that the conduct complained of resulted in harassment. In this case changes to an employee’s role, due to their disability, and without consultation, were found to amount to harassment.
It is important to remember that it does not matter whether an employee intends to offend another by their conduct. It is the impact of that conduct on the complainant, and whether a reasonable person in possession of the same information would consider that the course of conduct amounted to harassment. The pitfall for employers is that they may be held vicariously liable for the conduct of their employees. It is therefore prudent to mitigate this risk by ensuring that appropriate training is provided to employees.
BCR Law LLP provides discrimination training to clients through seminars. If this is something that you wish to explore further, please do not hesitate to get in touch with our team.
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