The Multiple Definitions of Harassment and Direct Discrimination: A ‘Pandora's Attic’?

Abstract

It has been received wisdom for some time that some statutory definitions of harassment and discrimination embrace treatment on the ground of a third party's race, or sex, etc, and ‘perceived’ discrimination, that is where the discriminator has acted on a mistaken belief that the victim belonged to a protected group. What was less certain is whether the definitions could embrace a scenario where the treatment was not grounded in anyone's particular protected status, or where a worker was fired for his racial views. This article explores the precise meanings attributable to the statutory formulas, and considers the recent Court of Appeal decisions of Redfearn v Serco and English v Sanderson. It concludes that there is an inconsistent and incoherent range of statutory formulas, some narrow, some broad, and some hybrid, and the cases are decided more on policy and purpose than literal interpretation of these formulas.