The legal framework in this area is complex because there is no one statute which deals with harassment and bullying in employment and instead issues are dealt with under different types of legal action depending on the particular form of harassment.

Harassing and bullying behaviour can range from repeatedly ignoring a colleague or subjecting them to unwelcome attention, to intimidation, humiliation, ridicule or offence. It may consist of a single incident or a series of incidents. Behaviour that may appear trivial as a single incident can constitute harassment or bullying when repeated. Where the conduct is motivated by sexual, racial or disability reasons then a possible claim may fall under the Sex Discrimination Act, Race Relations Act and Disability Discrimination Act respectively.

Sexual harassment

Although not specifically provided for within the Sex Discrimination Act 1975, case law has recognised that sexual harassment may fall within the definition of direct sex discrimination under the Act in that the victim of the harassment has been treated less favourably and suffered a detriment on the grounds of his or her gender. In April 2002 the Equal Treatment Directive was amended to provide at last a definition of sexual harassment which amounts to "any form of unwanted verbal, non verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment". Broadly, the definition reflects the development of case law in the UK but it will now have to be incorporated expressly in the sex discrimination legislation.

There have been numerous attempts to extend the protection of the Sex Discrimination Act to cases involving sexual orientation. To date, these attempts have been unsuccessful and it appears that we may have to wait until December 2003 when the UK is required under the Equal Treatment Framework Directive to introduce legislation prohibiting discrimination on grounds of sexual orientation. For the moment, an individual is only able to proceed with a discrimination claim in limited circumstances and only then if they can show that the employer has treated lesbian women less favourably than gay men, or vice versa.

The position is different for discrimination against transsexuals because the Government issued Regulations which amended the Sex Discrimination Act to prohibit discrimination on such grounds.

Racial harassment

Complaints of racial harassment are progressed under the Race Relations Act 1976 which makes it illegal to treat a person less favourably than others on racial grounds such as race, colour, nationality (including citizenship) and national or ethnic origin. Racial harassment is usually although not exclusively, directed at people from ethnic minorities. It may include jokes about, or gratuitous references to a person's colour, race, religion or nationality. It can also include offensive remarks about dress, culture or customs, which have the effect of undermining an individual or fostering prejudice towards individuals or particular groups.

Harassing the disabled

Harassment of employees with disabilities can take the form of employees being ignored, disparaged or ridiculed because of mistaken assumptions about their capabilities. Their disability rather than their ability can become the focus of attention and harassment. The disability legislation is still at an early stage and there have therefore been fewer cases of harassment on the grounds of disability. The structure of the Disability Discrimination Act is different to that of the other discrimination legislation in that an individual does not need to identify an able bodied comparator who has or would have been treated differently. All that disabled people have to show is that for a reason related to the disability they were treated less favourably than others to whom that reason does not apply. Unless the employer can justify the less favourable treatment then this will amount to disability discrimination. It follows that if an individual is being harassed or bullied it would be difficult to see how an employer could justify such conduct.

Non-legislative remedies

An employee whose claim does not fall within the discrimination legislation may not be completely helpless because if they have been subjected to such a degree of harassment that they have to leave their employment then they can bring a claim for constructive/unfair dismissal. However, depending on the individual's circumstances, such a claim may not necessarily be attractive because the employee will have lost the employment and may have to wait several months to progress a claim in the tribunal unless settlement is reached in the interim.

An employee may also have the potential to bring a personal injury claim if the harassment or bullying has been sufficiently serious so as to cause personal injury. However, the main hurdle in these cases is often the issue of foreseeability in that not only must the employer have been aware of the existence of the harassment or bullying but must also have failed to foresee the prospect of physical or psychological harm arising as a consequence.

Finally, in June 1997 the Protection from Harassment Act was implemented creating causes of both criminal and civil actions against a person who pursues a course of conduct amounting to harassment. The Act was passed following media and public concern about the problem of stalking but the wording of the Act allows it to be used to cover other types of harassment. However, the case law is still in its infancy and it is not certain whether or not it will provide adequate remedies against an employer.

It may be the case that employees will not receive full protection or redress from the law unless separate and comprehensive legislation is implemented to deal specifically with harassment and bullying.

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