Harassment at Work as Discrimination: The Current Debate in England and Wales

Date01 September 1998
DOI10.1177/135822919800300202
Published date01 September 1998
International Journal of Discrimination and the Law, 1998, Vol
. 3, pp
. 91-114
1358-2291/98 $10
© 1998
A B Academic Publishers
. Printed in Great Britain
HARASSMENT
AT WORK AS DISCRIMINATION
: THE
CURRENT DEBATE IN ENGLAND AND WALES
PAULINE ROBERTS* & LUCY VICKERS
*
Cardiff Law School, UK
** Oxford Brookes University, UK
ABSTRACT
In
1996-97
there were a number of significant decisions which extended the scope
of employers' liability for sexual and racial harassment at work,
based upon the
provisions of the Sex Discrimination Act
1975
and the Race Relations Act 1976
.
This article seeks to analyse the impact of these recent cases
.
It began by con-
sidering the relationship between the concepts of `harassment' and `discrimination'
and the problems inherent in using the anti-discrimination legislation
to deal with
harassment and bullying at work
; we then focus on the recently demonstrated
`pur-
posive' approach of the Employment Appeal Tribunal
and Court of Appeal in
interpreting the statutes and consider how this combats the weaknesses
identified
.
Alternative forms of relief will be briefly considered,
in particular the recently
. The authors, while welcoming
the
recent decisions, argue that there are some victims of bullying who remain outside
the protection of the existing anti-discrimination legislation
(as they do not fall
within any of the groups identified for protection), notwithstanding the robust
advances of the EAT
. We suggest that the Protection from Harassment
Act may
not completely fill this gap
.
1 INTRODUCTION
Until the 1980s, harassment at work was
`an experience without a
name'
;' a common experience which was without formal recognition
.
Statutes enacted to prevent discrimination at work made no reference
to harassment and were not designed with its prevention in mind
.
As
a result, although the experience is now widely recognised,
legisla-
tion has struggled to provide adequate protection
.
It was not until 1986 that the higher courts decided that sexual
and racial harassment was a form of discrimination that could be pro-
tected under the Sex Discrimination Act 1975 (SDA) and Race Rela-
tions Act 1976 (RRA) (hereafter `the Acts')
.
2
These decisions were
based on an acceptance that harassment on grounds
of sex or race
constitutes a `detriment', against which protection is
available under
92
the Acts
. 3
At the same time, the question of harassment began to be
addressed more directly at a European level, and work began that led
in 1991 to the European Commission Recommendations on the pro-
tection of the dignity of men and women at work and a Code of
Practice on measures to combat sexual harassment
.
4
These moves represent welcome steps towards providing protec-
tion against harassment at work. However, as further case-law has
developed,
s
a number of limitations on the protection provided by the
Acts have become apparent, due in part to the fact that the legislation
was not drafted specifically to deal with harassment but with discrim-
ination
.
The purpose of this article is to reconsider the scope of relief
provided by the Acts in the light of a number of recent cases under
the RRA and SDA which have significantly extended employer liabil-
ity for racial and sexual harassment at work
. The ensuing discussion
is in three parts
. The first reflects briefly on the relationship between
`harassment' and `discrimination', and on the difficulties experienced
in using the Acts to combat harassment . The second contains a
review of the recent cases and considers the extent to which they
provide an answer to these difficulties . The final part considers
alternative forms of action, including the new Protection from Har-
assment Act 1997 (`the 1997 Act'), that may bring relief to those
who suffer harassment at work but for whom the Acts do not provide
a remedy
.
2 HARASSMENT AND DISCRIMINATION
The meaning of discrimination and the aim of legislation in this area
have been the subject of much debate
.
6
Discrimination can be con-
trasted with `differentiation' where the distinction may or may not
be viewed as illegitimate .' One view is that discrimination involves
an illegitimate distinction between people, on the basis of some
identifiable characteristic, which results in less favourable treatment
of certain social groups
.
$
Discrimination based on race, gender or
disability is recognised in England and Wales through the Acts and
. The legislation also
prohibits
indirect discrimination which occurs when decisions,
although not deliberately discriminatory, have an adverse effect on
different gender or racial groups and cannot be justified by
other
factors
.
Meanwhile, to harass can be defined as to `trouble and annoy
continually or repeatedly
.' 9
Harassment may take the form of persist-
ent telephone calls, verbal or physical abuse, single or multiple

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