Harassment doesn’t have to be intentional: a reminder

Those following the Priti Patel news story in recent days might be forgiven for assuming that bullying and harassment needs to be intentional.  However that is not the case, at least as far as the legal definition of harassment in the Equality Act is concerned.

Paragraph 1.2 of the Ministerial Code states that “Harassing, bullying or other inappropriate or discriminating behaviour wherever it takes place is not consistent with the Ministerial Code and will not be tolerated.”

The Prime Minister’s response to an unpublished investigation into the Home Secretary’s conduct is set out in a written statement to Parliament on 23 November, in which he explains his reasons for concluding that she was in not in breach of the Ministerial Code. He points out that she was “unaware” of the impact of her behaviour and that she was “sorry for inadvertently upsetting those with whom she was working.” While these aspects were no doubt relevant to the response he chose to make to the report, they would not in themselves be sufficient to defeat a legal claim.

The Equality Act defines harassment as unwanted conduct which has the purpose or effect of violating another person’s dignity or creating an “intimidating, hostile, degrading, humiliating or offensive environment" for that person (emphasis added). The Act goes on to state that in deciding whether the behaviour has that effect, the perception of the victim must taken into account, as well as the other circumstances, and whether it is “reasonable for the conduct to have that effect”.

To fall within the scope of the Equality Act, this behaviour has to be related to a protected characteristic. There is no formal legal definition of bullying, but a good working definition would be to track the Equality Act’s wording, but remove the requirement for it to be related to a protected characteristic.

What that means is harassment can be unintentional as well as intentional. For the unintentional variety, the focus needs to be on the effect of the behaviour on the person on the receiving end, not the motivation of the perpetrator. As the definition makes clear, there is an objective element in the assessment, and the context will always be relevant. But it is clear that it is no defence for an alleged perpetrator to say that they did not realise the impact their conduct was having, or to apologise after the event – though an appropriate and timely apology may well be relevant in assessing any compensation due.

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