■any form of unwanted, non-verbal or physical con-
duct of a sexual nature occurs with the purpose or
effect of violating the dignity of a person, in particu-
lar, when creating an intimidatory, hostile, degrading,
humiliating or offensive environment.
Harassment and case law
There are numerous cases of mainly sexual harassment.
Most of these provide different factsituations of such
harassment and cannot, because of their number, be
reproduced here. However, a leading case containing
guidance from the EAT that can be applied in other
cases even under the new definition of harassment is
Driskelv Peninsular Business Services Ltd(2000). Mrs
Driskel was an adviceline consultant with Peninsular.
She claimed that she had been sexually harassed by the
head of her department. She alleged that she had been
subject to sexual banter and comments and that at an
interview for promotion he had suggested that she wear
a short skirt and a see-through blouse showing plenty of
cleavage. This advice was not accepted. She then refused
to return to work unless the head of department was
moved elsewhere. She was then dismissed and made a
claim to an employment tribunal. Her claim was re-
jected because the incidents looked at in isolationwere
not enough. She appealed and the EAT substituted a
finding of sexual harassment and in doing so stated:
■the tribunal should have looked at the total or overall
effectof the acts complained of;
■a woman’s failure to complain at times throughout the
conduct should not necessarily be taken as significant;
■sexual ‘banter’ between heterosexual men cannot be
equated with, so as to excuse, similar comments towards
a woman.
Harassment: other legislation
When harassment is intended and studied the Criminal
Justice and Public Order Act 1994 creates a criminal
offence of intentional harassment. It appears as s 4A
inserted into the Public Order Act 1986. The penalty on
conviction by magistrates is imprisonment for up to six
months and/or a fine of up to £5,000.
It is clear from the wording of s 4A that harassment in
the workplace is covered. This means that employees
who are harassed at work are able to report the matter to
the police.
The Protection from Harassment Act 1997 is also
relevant. The Act is very wide ranging and covers dis-
criminatory harassment and bullying at work. It is also
possible to bring civil proceedings against offenders
under the Act. (See Majrowskiv Guy’s and St Thomas’s
NHS Trust(2005)).The ramifications of sexual orientation and
religion or belief regulations
There is as yet no body of case law on the regulations
in the above areas and so some guidance is given as set
out below.An ACAS code of practice
ACAS has issued a code of practice to assist employers in
complying with the regulations on sexual orientation and
religion or belief. It can be accessed at: http://www.acas.org.uk.
Sexual orientation
The following matters arise.
1 In recruitment.When advertising, employers should
avoid unnecessary job criteria that could prevent persons
applying because of their sexual orientation. During the
interviewing process the employer should avoid ques-
tions regarding marital status and children.
2 Vetting.It may be that the employer has, because of
the nature of the work, e.g. work with children, followed
the vetting process through the Criminal Records
Bureau, and where this shows relevant offences, then
exclusion of a particular candidate would not be unlaw-
ful. Furthermore, sexual offences do not become spent
under the Rehabilitation of Offenders Act 1974 and
should be disclosed. However, where a criminal record
bears no relationship to the job and does not affect skills
or competence, exclusion may be unlawful.
3 Genuine occupational requirement.As we have
seen, it may sometimes be lawful to treat a gay person
differently as where the work is in an area such as the
Middle East where homosexuality is illegal and may lead
to proceedings against gay men, lesbian women and
bisexuals. The regulations also allow difference in treat-
ment where the work is for the purposes of organised
religion.
4 Fitting in.Employers should not engage in stereotyp-
ing and make assumptions as to whether a person would
fit into the organisation.5 Harassment.Taunting by workers about the actual
or perceived sexual orientation of a fellow worker or
those associated with him or her are illegal. Staff shouldPart 4Business resources