Claims of harassment, be they current or historical, are everywhere at the moment. Regardless of your view on the legitimacy of some of these, what is undeniable is that employers can’t continue to make allowances for the types of conduct that are being reported without risking significant legal exposure.

To assist employers in identifying the behaviours that could give rise to valid discrimination complaints, we’ve produced a series of “myth busters” to help separate fact from fiction, all of which will be published on this website in the next few days.

Of course, if you’re an employer and would like to discuss any of the issues touched on in these posts, please contact one of our HR consultants in confidence and without delay for some initial advice free of charge and without obligation.

Myth: Only the perception of the “victim” is considered in allegations of sexual harassment.

Fact: Although how the complainant has reacted to the actions which have led to the claim of harassment is an important consideration, it will also depend on whether it was reasonable in the circumstances for those actions to have had that effect, or whether he / she was being over-sensitive.

Hence it is not enough for the victim simply to claim that the unwanted conduct violated their dignity or created an environment that was intimidating, hostile, degrading, humiliating or offensive to them. A tribunal must also decide that it is reasonable for that to be the effect although, in reaching their view on this, they must take the victim’s perception into account. A victim’s claimed reaction to the unwanted conduct is unlikely to qualify if it is bizarre or hypersensitive.

The words or acts relied upon as harassment must be seen in context. The tribunal must also keep in mind that the impact of separate incidents may accumulate and that the work environment created may therefore exceed the sum of the individual episodes.

If the effect on the victim satisfies the reasonableness test, it will not matter that the perpetrator did not intend their unwanted conduct to have that effect.

Guidelines to assist tribunals in applying the law on harassment, were laid down by Mr Justice Underhill in the case of Richmond Pharmacology v Dhaliwal. Amongst other things, he stated:

 

‘…Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered in other similar discrimination legislation), it is also important not to encourage a culture of hypersensitivity, or the imposition of legal liability in respect of every unfortunate phrase.’

 

Look out for our next post, which will deal with different types of “victim” in claims of sexual harassment.