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Harassment at work

The new Equality Act 2010 finally took effect on 1 October 2010 and in many instances it is set to further strengthen protection from discrimination in the workplace.

The Act improves the rights of gay people, women, people with disabilities and others who suffer discrimination because of a ‘protected characteristic’.

But the law does more than just protect someone’s race, sex or disability – anyone who is offended, humiliated or degraded by comments, images, jokes or pranks which are related to a protected characteristic is awarded the same protection, even where the offensive behaviour is not directed at them, or relates to protected characteristics they do not have.

This level of protection is not entirely new. In 2008, the case of English v Thomas Sanderson Blinds Ltd saw a married man win a claim against his former employer for sexual orientation harassment under the Employment Equality (Sexual Orientation) Regulations 2003. Mr English was tormented by colleagues who called him “faggot” after they found out he had attended boarding school and lived in Brighton, though they knew he was married and didn’t really believe he was gay.

Offensive environment

He argued his colleagues used homophobic language to harass him, turning the workplace into an offensive environment for him. The Employment and Employment Appeal Tribunals ruled that to uphold the claim would involve extending the law, but the Court of Appeal disagreed and ruled in favour of Mr English.

The Equality Act 2010 modifies the law of harassment, adopting the approach taken by the Court of Appeal. It means that employees who are offended by jokes or banter related to age, disability, gender reassignment, race, religion or belief, sex or sexual orientation may pursue employment tribunal claims.

A significant change

This spells significant change for the construction sector, where building site banter is an inherent feature of the industry. Construction bosses need to make changes to avoid getting stung by a claim that could have serious financial repercussions. Issuing a policy on harassment in the workplace so all staff are aware of the rules, ensuring that senior members are trained to deal with harassment, and giving staff a named contact and a route to follow should they experience harassment are advised.

Employers are obliged to take harassment complaints seriously; a written record that demonstrates how the complaint was investigated and acted on could protect the business from a successful claim if the employer can show it did all it could to tackle the problem.

Linda Stewart is an employment partner at law firm Simpson Millar

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