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Harassment is a topic which, in the past few decades, has been taken increasingly seriously in the United Kingdom, and has been the subject of a number of pieces of legislation.
Racial and sexual discrimination have been unlawful under the Race Relations Acts and the Equality Act 2010 (originally the Sex Discrimination Act 1975 which was repealed). Respectively, it is only comparatively recently that specific legislation has defined harassment specifically as unlawful.
Because of the rise recently in awareness [2] of the issues involved in harassment, recent trends have shown significant rises in the number of people making claims of harassment at Employment Tribunals. If the complaint is serious, high damages may be awarded against the Employer, so it is important for the Employer to take seriously any allegation of harassment at an early stage and take steps to quickly resolve it.
There is also legislation in place to be able to deal with discrimination, and this legislation is distinct to that provided under the Sex Discrimination Act 1975 and the Race Relations Acts.
Under the Protection from Harassment Act 1997 - this statute makes harassment a crime and a civil wrong:
Section 1(1): 'A course of conduct which amounts to harassment, and which the defendant knows or ought to know amounts to harassment is prohibited.' [3]
"A person must not pursue a course of conduct
'As for what the defendant 'ought to know', the test is whether a reasonable person in possession of the same information would think it amounts to harassment' - Section 1(1)(2). [3] The defendant need not know that their conduct amounts to harassment of the other, so long as you ought to know that your course of conduct ought to amount to harassment of the other: [4]
Per Section 1(2) - 'the person whose course of conduct is in question ought to know that it amounts to [or involves] harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.' [3]
Harassment also occurs when, on the grounds of race, disability, sex, sexual orientation, belief or religion, an employer - or their agent such as another employee or a manager - engages in unwanted conduct which has the purpose or effect of violating an individual's dignity or creating an interrogating, degrading, hostile offensive or humiliating environment for the employee in question. This is wide spectrum, and covers all types of harassment.
Such actions can be:
In addition, while the conduct must be unwanted by the recipient, it does not necessarily have to be that the harasser has a motive or an intention to harass. So it is still harassment even if the harasser does not know there is harm caused by their actions.
Whilst under Section 2 of the Protection from Harassment Act 1997, states that harassment is a crime, the statute also provides a civil remedy, for actual or apprehended harassment under section 3(1). [3]
'In life one has to put up with a certain amount of annoyance', [5] but 'To cross the boundary from the regrettable to the unacceptable, the gravity of the misconduct must be of an order which would sustain criminal liability under section 2. [3] ' [6] Under the Protection from Harassment Act 1997, Section 7(2) [3] 'References to harassing a person include alarming the person or causing the person distress.'
'As with any common English word, what amounts to harassment, alarm or distress in any given situation is a question of fact for the magistrates.' [7]
However, whilst it is 'evident that the 1997 Act created an offence of potentially enormous scope, 'Not any trivial act of harassment will do; there is a minimum level of alarm and distress which must be suffered in order to constitute harassment.' [7] This has been specified in previous case law that mere alarm or distress might not be enough to result in the defendant being liable for harassment; the defendant's behaviour must be oppressive. [8] Moreover, in the case of Hayes v Willoughby, [9] harassment was described as a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, calculated to cause 'alarm, fear and/or distress.' [9]
Furthermore, following Pill LJ's judgment: 'To harass as defined in theConcise Oxford Dictionary, Tenth Edition, is to "torment by subjecting to constant interference or intimidation. The conduct must be unacceptable to a degree which would sustain criminal liability and also must be oppressive.' [10]
There 'must be a course of conduct, that is to say conduct on at least two occasions.' [7] 'A single act of harassment will not amount to an offence.' [7] Under Section 7(3): [3] A course of conduct must involve-
(a) 'In the case of conduct in relation to a single person, conduct on at least two occasions in relation to that person, or
(b) in the case of conduct in relation to two or more persons, conduct on at least one occasion in relation to each of those persons.' [3]
So, a single occasion is not enough. For example, in the case of R vCurtis [11] where the defendant was in a volatile relationship with the claimant. The court 'required proof of a course of conduct,' [7] and it was held the 'course of conduct [present here] amounted to harassment.' [7]
It is not necessary that the victim themselves be the target:
For example, in the case of Levi v Bates [2015], [12] the defendant published the claimant's address and number, however, the wife of the claimant also suffered distress and alarm resultant of this. The court held that although the husband was the target of the harassment, the wife could also sue because it was foreseeable that she too would have been harassed by the defendant's conduct.
An employer is liable, as is the case for many other acts, for the actions of their employees during the course of employment. Though it would be relatively easier to prove that a manager or supervisor to the recipient could be guilty of harassing "during the course of employment", it may require more proof if the harasser is in a subordinate position.
Employers can avoid liability for discriminatory harassment if they can prove that they took such steps that were reasonably practical to prevent harassment from occurring.
However, employers cannot use this defence to a claim of harassment under the Protection from Harassment Act 1997, under which they will have vicarious liability for the actions of their employees.
The United Kingdom has a "rag bag of statutes" relating to harassment. [13]
Section 40 of the Administration of Justice Act 1970 creates the offence of harassing a contract debtor.
The marginal note to section 1 of the Protection from Eviction Act 1977 refers to "harassment of occupier".
Section 4A of the Public Order Act 1986, inserted by the Criminal Justice and Public Order Act 1994, creates the offence of intentional harassment, alarm or distress.
Section 5 creates the offence of harassment, alarm or distress.
This Act was primarily created to provide protection against stalkers, but it has been used in other ways.
Under this Act, it is now an offence for a person to pursue a course of action which amounts to harassment of another individual, and that they know or ought to know amounts to harassment. Under this act the definition of harassment is behaviour which causes alarm or distress. This Act provides for a jail sentence of up to six months or a fine. There are also a variety of civil remedies that can be used including awarding of damages, and restraining orders backed by the power of arrest.
The introduction of this legislation considers 'emotional harm generally,' [7] which was considered a 'radical change to the law.'
Employers have vicarious liability for harassment by their employees under the Protection from Harassment Act 1997, (see Majrowski v Guy's and St Thomas' NHS Trust ). For employees this may provide an easier route to compensation than claims based on discrimination legislation or personal injury claims for stress at work, as the elements of harassment are likely to be easier to prove, the statutory defence is not available to the employer, and it may be easier to establish a claim for compensation. Also as the claim can be made in the County Court costs are recoverable and legal aid is available.
In Scotland the Act works slightly differently:
Under the Protection from Harassment Act [3] ‘1(3) Subsection (1) [or (1A)] does not apply to a course of conduct if the person who pursued it shows—
For example, shown again in the case of Hayes v Willoughby [9] where the defendant was making allegations against his former employer of fraud, embezzlement and tax evasion and engaged in a six-year campaign, writing to the police of the Department of Trade and Industry, among others. [4] However, after investigation there was found to be nothing behind the allegations. Yet, even after the police shared their conclusions the defendant continued to make allegations. [4] This amounted to harassment, as there was no further rational basis to continue his 'investigations.' [4] Hence, the defence under Section 1(3)(a) [3] was not upheld:
'[13]It cannot be the case that the mere existence of a belief, however absurd, in the mind of the harasser that he is detecting or preventing a possibly non-existent crime, will justify him in persisting in a course of conduct which the law characterises as oppressive. Some control mechanism is required, even if it falls well short of requiring the alleged harasser to prove that his alleged purpose was objectively reasonable'. [9]
[15] ‘Before an alleged harasser can be said to have had the purpose of preventing or detecting crime, he must have sufficiently applied his mind to the matter. He must have thought rationally about the material suggesting the possibility of criminality and formed the view that the conduct said to constitute harassment was appropriate for the purpose of preventing or detecting it. If he has done these things, then he has the relevant purpose.’ [9]
See the main article: Damages
Under Section 3(2), [3] compensatory damages may be awarded for anxiety and financial loss resultant of the harassment. Harassment incurs liability for all direct losses, and not merely those which were reasonably foreseeable. [14]
Potential remedies also include an injunction, and if that injunction is transgressed, the claimant may apply for an arrest warrant under Section 3(3). [3] For example, in the case of Brand v Berki, [15] the claimant made repeated serious criminal allegations against Russell Brand, the comedian. She had reported the matter to the police, who investigated and said there was no cause to answer. However, she continued with the allegations in the national press and on Twitter. Resultantly, an interim injunction was granted, pending trial.
A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.
False imprisonment or unlawful imprisonment occurs when a person intentionally restricts another person's movement within any area without legal authority, justification, or the restrained person's permission. Actual physical restraint is not necessary for false imprisonment to occur. A false imprisonment claim may be made based upon private acts, or upon wrongful governmental detention. For detention by the police, proof of false imprisonment provides a basis to obtain a writ of habeas corpus.
In English criminal law, public nuisance is a act, condition or thing that is illegal because it interferes with the rights of the general public.
In criminal law, incitement is the encouragement of another person to commit a crime. Depending on the jurisdiction, some or all types of incitement may be illegal. Where illegal, it is known as an inchoate offense, where harm is intended but may or may not have actually occurred.
English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil law, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.
Negligence in employment encompasses several causes of action in tort law that arise where an employer is held liable for the tortious acts of an employee because that employer was negligent in providing the employee with the ability to engage in a particular act. Four basic causes of action may arise from such a scenario: negligent hiring, negligent retention, negligent supervision and negligent training. While negligence in employment may overlap with negligent entrustment and vicarious liability, the concepts are distinct grounds of liability. The doctrine that an employer is liable for torts committed by employees within the scope of their employment is called respondeat superior.
Malfeasance in office is any unlawful conduct that is often grounds for a just cause removal of an elected official by statute or recall election, or even additionally a crime. Malfeasance in office contrasts with "misfeasance in office", which is the commission of a lawful act, done in an official capacity, that improperly causes harm; and "nonfeasance in office", which is the failure to perform an official duty.
The Proceeds of Crime Act 2002 (POCA) is an act of the Parliament of the United Kingdom which provides for the confiscation or civil recovery of the proceeds from crime and contains the principal money laundering legislation in the UK.
The Theft Act 1978 is an act of the Parliament of the United Kingdom. It supplemented the earlier deception offences contained in sections 15 and 16 of the Theft Act 1968 by reforming some aspects of those offences and adding new provisions. See also the Fraud Act 2006.
Assault occasioning actual bodily harm is a statutory offence of aggravated assault in England and Wales, Northern Ireland, the Australian Capital Territory, New South Wales, Hong Kong and the Solomon Islands. It has been abolished in the Republic of Ireland and in South Australia, but replaced with a similar offence.
Intentional harassment, alarm or distress is a statutory offence in England and Wales. It is an aggravated form of the offence of harassment, alarm or distress under section 5 of the Public Order Act 1986.
Harassment, alarm or distress is an element of a statutory offence in England and Wales, arising from an expression used in sections 4A and 5 of the Public Order Act 1986, which created the offence. The Act was amended in 1994.
In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea or by reason of a partial defence. In England and Wales, a common practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option. The jury then decides whether the defendant is guilty or not guilty of either murder or manslaughter. On conviction for manslaughter, sentencing is at the judge's discretion, whereas a sentence of life imprisonment is mandatory on conviction for murder. Manslaughter may be either voluntary or involuntary, depending on whether the accused has the required mens rea for murder.
United Kingdom employment equality law is a body of law which legislates against prejudice-based actions in the workplace. As an integral part of UK labour law it is unlawful to discriminate against a person because they have one of the "protected characteristics", which are, age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, pregnancy and maternity, and sexual orientation. The primary legislation is the Equality Act 2010, which outlaws discrimination in access to education, public services, private goods and services, transport or premises in addition to employment. This follows three major European Union Directives, and is supplement by other Acts like the Protection from Harassment Act 1997. Furthermore, discrimination on the grounds of work status, as a part-time worker, fixed term employee, agency worker or union membership is banned as a result of a combination of statutory instruments and the Trade Union and Labour Relations (Consolidation) Act 1992, again following European law. Disputes are typically resolved in the workplace in consultation with an employer or trade union, or with advice from a solicitor, ACAS or the Citizens Advice Bureau a claim may be brought in an employment tribunal. The Equality Act 2006 established the Equality and Human Rights Commission, a body designed to strengthen enforcement of equality laws.
English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, in addition to certain international organisations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. The fundamentals of a crime are a guilty act and a guilty mental state. The traditional view is that moral culpability requires that a defendant should have recognised or intended that they were acting wrongly, although in modern regulation a large number of offences relating to road traffic, environmental damage, financial services and corporations, create strict liability that can be proven simply by the guilty act.
The Protection from Harassment Act 1997 is an act of the Parliament of the United Kingdom. On introducing the Bill's second reading in the House of Lords, the Lord Chancellor, Lord Mackay of Clashfern, said, "The aim of this Bill is to protect the victims of harassment. It will protect all such victims whatever the source of the harassment—so-called stalking behaviour, racial harassment, or anti-social behaviour by neighbours." Home Office guidance on the Act says "The legislation was always intended to tackle stalking, but the offences were drafted to tackle any form of persistent conduct which causes another person alarm or distress."
Nuisance in English law is an area of tort law broadly divided into two torts; private nuisance, where the actions of the defendant are "causing a substantial and unreasonable interference with a [claimant]'s land or his/her use or enjoyment of that land", and public nuisance, where the defendant's actions "materially affects the reasonable comfort and convenience of life of a class of His Majesty's subjects"; public nuisance is also a crime. Both torts have been present from the time of Henry III, being affected by a variety of philosophical shifts through the years which saw them become first looser and then far more stringent and less protecting of an individual's rights. Each tort requires the claimant to prove that the defendant's actions caused interference, which was unreasonable, and in some situations the intention of the defendant may also be taken into account. A significant difference is that private nuisance does not allow a claimant to claim for any personal injury suffered, while public nuisance does.
Trespass in English law is an area of tort law broadly divided into three groups: trespass to the person, trespass to goods, and trespass to land.
Majrowski v Guy's and St Thomas' NHS Trust [2006] UKHL 34 is a UK labour law case holding that an employer will be vicariously liable for the harassment of an employee by another.
Sexual harassment in the workplace in US labor law has been considered a form of discrimination on the basis of sex in the United States since the mid-1970s. There are two forms of sexual harassment recognized by United States law: quid pro quo sexual harassment and behavior that creates a hostile work environment. It has been noted that a number of the early sexual harassment cases were brought by African American women and girls.
