Harassment at Work as Discrimination: The Current Debate in England and Wales

Abstract

In 1996–97 there were a number of significant decisions which extended the scope of employers' liability for sexual and racial harassment at work, based upon the provisions of the Sex Discrimination Act 1975 and the Race Relations Act 1976. This article seeks to analyse the impact of these recent cases. It began by considering the relationship between the concepts of ‘harassment’ and ‘discrimination’ and the problems inherent in using the anti-discrimination legislation to deal with harassment and bullying at work; we then focus on the recently demonstrated ‘purposive’ approach of the Employment Appeal Tribunal and Court of Appeal in interpreting the statutes and consider how this combats the weaknesses identified. Alternative forms of relief will be briefly considered, in particular the recently enacted Protection from Harassment Act 1997. The authors, while welcoming the recent decisions, argue that there are some victims of bullying who remain outside the protection of the existing anti-discrimination legislation (as they do not fall within any of the groups identified for protection), notwithstanding the robust advances of the EAT. We suggest that the Protection from Harassment Act may not completely fill this gap.