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equalitytalk.org.uk

How Equality Act 2010 applies to adult communication impairments in Britain

  1. Introduction
  2. Disability
  3. Discrimination
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Harassment

Harassment is most commonly thought of in employment. However, disability-related harassment by service providers, educational institutions etc is also unlawful under the Equality Act 2010.

Key points

  • Harassment is widely defined.
  • There can sometimes be a defence if the claimant is being over-sensitive.
  • Harassment by colleagues will often also be unlawful.
  • Sometimes harassment by the employer's suppliers or customers is covered.
  • The person being harassed need not necessarily have a disability.

What is 'harassment'?

Harassment is not technically 'discrimination', but is also unlawful under Equality Act 2010.

'Harassment' is widely defined. It is where a person (A) engages in unwanted conduct related to a disability and the conduct has the purpose or effect of
(a) violating another person's (B's) dignity, or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

There is a provision which is intended to give the employer etc some protection if the claimant is being hypersensitive. Under s.26(4) EqA, in deciding whether conduct has that effect, the tribunal must take into account (a) the perception of the claimant, (b) the other circumstances of the case, and (c) whether it is reasonable for the conduct to have that effect. This does not apply if A's purpose was to violate the person's dignity or create the environment.

The definition is in s.26 EqA. Chapter 7 of the Employment Code of Practice and Chapter 8 of the Services Code of Practice are on harassment.

From previous Statutory Code of Practice
"A man with a stammer feels he is being harassed because his manager makes constant jokes about people with speech impairments. He asks his manager to stop doing this, but the manager says he is being 'oversensitive' as he habitually makes jokes in the office about many different sorts of people. This is likely to amount to harassment because making remarks of this kind should reasonably be considered as having either of the effects mentioned above."
Para. 4.39 of the 2004 Code of Practice: Employment and Occupation. (This Code of Practice is no longer in force, but the Equality Act 2010 is likely to have the same effect.)

Case study
Television channel Setanta apologised to a football fan with cerebral palsy after a call centre worker laughed at his speech problems and then hung up.
'Fan gets apology from Setanta' (link to Manchester Evening News), 6/10/08.

Harassment by colleagues

An employer will often be liable for harassment by an employee's work colleagues, as well as managers. The individual doing the harassing may also be liable. See Who is liable.

Case
An Employment Tribunal held an employer liable for harassment where colleagues subjected the claimant to taunting and abuse directed at his stammer. For example, they often laughed and pulled faces at the claimant, who would sometimes contort his face trying to get his words out, and they made grunting sounds when he was in the vicinity. The assistant manager heard an operative say, "why don't you do us all a favour and f*** off you stuttering twat.".
Browne v John Edward Crowther Ltd (link to stammeringlaw.org.uk), 2002. This case was decided under different rules in the Disability Discrimination Act 1995, but it would doubtless also be harassment under the Equality Act 2010.

Harassment by customers, suppliers etc

Under s.40 EqA employers are liable for harassment of their staff (or job applicants) by third parties in some circumstances, for example harassment by customers or suppliers.

The liability only applies if the employer knows that the employee has been harassed in the course of his of her employment on at least two other occasions by a third party. (It could be a different third party on each occasion). The employer is then liable if a third party harasses an employee in the course of his/her employment and the employer failed to take such steps as would have been reasonably practicable to prevent the third party from doing so.

The Government said in March 2011 that it intends to consult to remove this provision.

Harassment of non-disabled person

It seems that there can be a claim for harassment even if the person harassed does not have a disability, or indeed if no one involved actually has a disability. The harassment may still relate to disability.

Example
An employee is made fun of because of his friendship with another work collegue who has a speech impediment. The employee may have a claim for harassment.

From draft non-statutory Code of Practice
At a careers event for students and parents at an FE college, a student attends with her parents who are both deaf. They communicate using BSL and the student notices two support staff staring and silently mimicking them. The student is very upset by the conduct of these staff which prevents her from fully participating in the event as it creates a degrading and offensive environment for her as well as her parents. The student brings a claim of harassment related to disability.
Para 8.12, Consultation draft Code of Practice on Higher and Further Education.
The example illustrates that disability-related harassment can include harassment of someone other than the disabled person. When finalised, the code is likely to be issued as a non-statutory code.

From draft non-statutory Code of Practice
"A pupil who is extremely shy is teased by a teacher about not being confident enough to answer questions in class. The teacher mimics him in front of the class by speaking with a stutter. Although the teacher knows the pupil does not have a speech or language disability, this conduct could still amount to disability related harassment under the Act."
Para 8.14 Consultation draft Code of Practice for Schools: England and Wales (pdf, link to EHRC website). This example relates to a school, but the same principle should apply for harassment of adults. When finalised, this Code is expected to be issued as a non-statutory code.