What are the characteristics of harassment?

Protecting employees from discrimination at work

Workplace discrimination legislation (the Equality Act 2010) protects people with ‘protected characteristics’ from unfair treatment. Protected characteristics include sex, marital status, gender reassignment, pregnancy, maternity, race, disability, sexual orientation, religion or belief, and age.

Types of workplace discrimination

There are four main types of discrimination at work and a further two forms of disability discrimination.

Direct discrimination

Direct discrimination occurs where you are treated less favourably because of a protected characteristic. This means that you have to show that you have been treated less favourably than a real or hypothetical comparator whose circumstances (apart from the protected characteristic) are not materially different to yours. The exception to this is pregnancy and maternity discrimination where formal comparators are not required.

Also covered is less favourable treatment that occurs because of your association with a person who has a protected characteristic. An example of this could be when someone suffers because their partner is disabled. Additionally, you can bring a claim when you are treated less favourably because you are perceived to have a protected characteristic. This might occur where the treatment is because someone is thought to be gay.

Indirect discrimination

Indirect discrimination is concerned with acts, decisions or policies (broadly speaking) which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging a group of people with a particular protected characteristic. Where such an action disadvantages an individual with that characteristic, it will amount to indirect discrimination unless it can be objectively justified.

Objective justification is defined as a showing that the measure is a proportionate means of achieving a legitimate aim. A legitimate aim is the reason behind the discrimination. This reason must not be discriminatory in itself and it must be a genuine or real reason. Proportionate means the aim or the reason behind the discrimination must be fairly balanced against the disadvantage suffered. It must be appropriate and necessary. If there are better and less discriminatory ways of doing things, it will be more difficult to justify discrimination.

Harassment

Harassment is unwanted conduct related to a protected characteristic that has the purpose or effect of either:

• Violating your dignity; or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for you

In addition, harassment also occurs when the unwanted conduct is specifically of a sexual nature or there is less favourable treatment because you have rejected or submitted to unwanted conduct of a sexual nature or related to gender reassignment or sex.

Victimisation

Victimisation provisions protect you where you do (or might do) protected acts such as bringing discrimination claims, complaining about harassment, or becoming involved in another employee’s discrimination complaint. Specifically, victimisation occurs when you are subjected to a detriment because either:

• You have done a protected act; or
• It is believed that you have done, or may do, a protected act

A protected act is one (or more) of

• Making a claim or complaint of discrimination under the Equality Act
• Giving evidence or information to help someone else who has made a complaint or a claim under the Act
• Doing anything else which is related to the Act
• Saying that someone has done something unlawful under the Act

Workplace discrimination legislation protects:

• Job applicants and employees
• Contract workers, including agency workers
• Police officers and applicants to join the police
• Partners and those seeking partnership in a firm (including an LLP)
• Barristers and trainee advocates

How we will help

Our discrimination law solicitors can help with all forms of discrimination at work, including if you are treated less favourably because you have a part-time or fixed-term contract. If negotiations fail to resolve the situation, we can also represent you at an Employment Tribunal.

Use the menu on the left of the screen to find out more about the different forms of discrimination, or click below:

To speak to a specialist Employment Law solicitor, contact us today on 01273 609911, or email .

All employers have a responsibility to make sure that their employees, and people who apply for a job with them, are treated fairly.

This responsibility is set out in federal and state anti-discrimination laws, as well as the Fair Work Act 2009 (Cth). Taken together, they make certain types of workplace behaviour against the law.

As an employer you need to prevent discrimination, harassment or bullying from occurring in the workplace.

What is unlawful discrimination?

Discrimination occurs when a person, or a group of people, is treated less favourably than another person or group because of their background or certain personal characteristics.

Federal discrimination laws protect people from discrimination of the basis of their:

• race, including colour, national or ethnic origin or immigrant status
• sex, pregnancy or marital status and breastfeeding
• age
• disability, or
• sexual orientation, gender identity and intersex status.

For more information see the relevant fact sheets.

The Australian Human Rights Commission Act 1986 (Cth) protects people from discrimination in employment because of their religion, political opinion, national extraction, nationality, social origin, medical record, criminal record or trade union activity. For more information see the Other areas of workplace discrimination fact sheet.

A number of these characteristics are also covered by the Fair Work Act 2009 (Cth). Some state and territory laws protect people from discrimination on the basis of additional personal characteristics. For more information, see A quick guide to Australian discrimination laws.

Discrimination can happen at different points in the employment relationship, including:

• when recruiting and selecting staff
• in the terms, conditions and benefits offered as part of employment
• who is considered or selected for training and the sort of training offered
• who is considered or selected for transfer or promotion
• who is considered and selected for retrenchment or dismissal.

What is harassment?

Under discrimination law, it is unlawful to treat a person less favourably on the basis of particular protected attributes such as a person’s sex, race, disability or age. Treating a person less favourably can include harassing or bullying a person.  The law also has specific provisions relating to sexual harassment, racial hatred and disability harassment.

Harassment can include behaviour such as:

• telling insulting jokes about particular racial groups
• sending explicit or sexually suggestive emails or text messages
• displaying racially offensive or pornographic posters or screen savers
• making derogatory comments or taunts about a person’s disability, or
• asking intrusive questions about someone’s personal life, including his or her sex life.

It is important to understand that a one-off incident can constitute harassment.

The Sex Discrimination Act 1984 prohibits harassment in the workplace by employers, co-workers and other “workplace participants”, such as partners, commission agents and contract workers. Sexual harassment is broadly defined as unwelcome sexual conduct that a reasonable person would anticipate would offend, humiliate or intimidate the person harassed.

The Disability Discrimination Act 1992 prohibits harassment in the workplace based on or linked to a person’s disability or the disability of an associate.

The Racial Discrimination Act 1975 prohibits offensive behaviour based on racial hatred. Racial hatred is defined as something done in public that offends, insults or humiliates a person or group of people because of their race, colour or national or ethnic origin.

All incidents of harassment – no matter how large or small or who is involved – require employers or managers to respond quickly and appropriately. If issues are left unaddressed, a hostile working environment can develop which can expose employers to further complaints.

What is workplace bullying?

The Fair Work Amendment Act 2013 defines workplace bullying as repeated unreasonable behaviour by an individual towards a worker which creates a risk to health and safety.

Bullying behaviour can range from obvious verbal or physical assault to subtle psychological abuse. It can include:physical or verbal abuse

• yelling, screaming or offensive language
• excluding or isolating employees
• psychological harassment
• intimidation
• assigning meaningless tasks unrelated to the job
• giving employees impossible jobs
• deliberately changed work rosters to inconvenience particular employees
• undermining work performance by deliberately withholding information vital for effective work performance.

What is unlikely to constitute bullying, harassment or discrimination

Legitimate comment and advice, including relevant negative feedback, from managers and supervisors on the work performance or work-related behaviour of an individual or group should not be confused with bullying, harassment or discrimination.

Providing negative feedback to staff during a formal performance appraisal, or counselling staff regarding their work performance, can be challenging. Managers should handle these conversations with sensitivity but they should not avoid their responsibility to provide full and frank feedback to staff.

Meeting your obligations

Everyone has the right to work in an environment free from bullying, harassment, discrimination and violence.

Employers need to be aware of their responsibilities to ensure that the working environment or workplace culture is not sexually or racially hostile. Employers should develop and implement targeted practices to address inappropriate workplace behaviour and deal effectively with any complaints.

Employers should also be proactive in addressing hostile behaviour that may be embedded in the workplace culture. Examples of a potentially hostile working environment are where racially or sexually crude conversations, innuendo or offensive jokes are part of the accepted culture. An employee can complain about such conduct as harassment even if the conduct in question was not specifically targeted at him or her.

Under occupational health and safety legislation, employers and employees are required to comply with any measures that promote health and safety in the workplace. Because of this duty, employers need to eliminate or reduce the risks to employees' health and safety caused by workplace bullying.

As of 1 January 2014, the Fair Work Ombudsman can receive complaints from workers who believed they have been bullied at work. Further information is available at www.fairwork.gov.au/complaints.

These documents provide general information only on the subject matter covered. It is not intended, nor should it be relied on, as a substitute for legal or other professional advice. If required, it is recommended that the reader obtain independent legal advice. The information contained in these documents may be amended from time to time.