The Multiple Definitions of Harassment and Direct Discrimination: A ‘Pandora's Attic’?
| Date | 01 June 2009 |
| Published date | 01 June 2009 |
| Author | Michael Connolly |
| DOI | 10.1177/135822910901000204 |
International Journal
of
Discrimination
and
the
Law,
2009,
Vol.
10,
pp.
101-108
1358-2291/2009 $10
© 2009 A B Academic Publishers. Printed in Great Britain
THE
MULTIPLE
DEFINITIONS
OF
HARASSMENT
AND
DIRECT
DISCRIMINATION:
A
'PANDORA'S
ATTIC'?
Redfearn v Serco (t/a West Yorkshire Transport Service) [2006]
EWCA
659
English v Sanderson [2008]
EWCA
1421
MICHAEL CONNOLLY
University
of
Surrey, UK
ABSTRACT
101
It has been received wisdom for some time that some statutory definitions
of
harass-
ment and discrimination embrace treatment on the ground
of
a third party's race,
or
sex, etc, and 'perceived' discrimination, that is where the discriminator has acted
on
a mistaken
belief
that the victim belonged to a protected group.
What
was less
certain is whether the definitions could embrace a scenario where the treatment was
not grounded in anyone s particular protected status, or where a worker was fired for
his racial views. This article explores the precise meanings attributable to the statu-
tory formulas, and considers the recent Court
of
Appeal decisions
of
Redfearn v
Serco and English v Sanderson.
It
concludes that there is an inconsistent and inco-
herent range
of
statutory formulas, some narrow, some broad, and some hybrid, and
the cases are decided more
on
policy and purpose than literal interpretation
of
these
formulas.
MULTIPLE DEFINITIONS OF HARASSMENT AND DIRECT
DISCRIMINATION
The
UK's
statutory definitions
of
harassment and direct discrimination
centre
on
the phrase on the ground
of
Domestic legislation carries two
varieties
of
this phrase for harassment, one narrow and one broad.
To
paraphrase, harassment is unlawful either
'on
grounds
of'
a protected
status (broad),
or
'on
the ground
of
his' protected status (narrow).
It
is,
for example, the difference between
'on
the ground
of
race',
or
'on
the
ground
of
his race'.
At
present, the
UK
legislation provides a broad defi-
nition for race, sexual orientation, and religion
or
belief. The narrow
definition covers gender reassignment and age. (For sex, the harassment
need only
be
related to her sex, an even broader phrase used to resolve
a different issue.') There is a similar discrepancy for direct discrimina-
tion, save that for religion
or
belief
there is a hybrid definition, and for
sex there is a narrow definition.
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