Would your staff know that even if they did not intend to harass someone, their action could still count as harassment? Should someone tell Lord Rennard?

Considerable publicity has been given to allegations of sexual harassment against Liberal Democratic peer Lord Rennard. An investigation came to the conclusion that intent could not be proved beyond reasonable doubt. Why does their need to be proof of intent?

The disciplinary procedure under which Lord Rennard was investigated allows a member to be expelled for bringing the Party under disrepute. Alistair Webster, the person chosen as the independent investigator, came to the conclusion:

‘it is unlikely that it could be established beyond reasonable doubt that Lord Rennard had intended to act in an indecent or sexually inappropriate way. Without proof of such an intention, I do not consider that such a charge would be tenable.’

Why does their need to be proof of intent?

In my national LSIS guidance on the Equality Act 2010, I outlined the definition of harassment, and some of the changes the Act brings to this definition. For all Lord Rennard’s supporters, here is a quick explanation on what it means to harass others, and why it matters.

Harassment occurs when someone behaves in such a way that their conduct has the purpose or effect of creating an environment that is offensive, hostile, degrading, humiliating or intimidating for a person, where:

• this is related to a protected characteristic (except pregnancy and maternity or marriage and civil partnerships)
• this is of a sexual nature (sexual harassment)
• a person is treated less favourably because they have either submitted to or rejected sexual harassment, or harassment related to sex or gender reassignment (this is known as ‘consequential harassment’).

It is important to understand the meaning of the words ‘purpose’ or ‘effect’. Someone might intentionally harass someone (purpose) or unintentionally harass someone (effect). This means that the determinant on whether harassment has occurred is more about the impact of harassment on an individual, and less about whether the impact was intentional or otherwise.

It is also useful to be aware that the Act changes the definition of harassment from unwanted conduct ‘on the grounds of’ to unwanted conduct ‘related to’. This subtle change has two benefits. First, it protects people who are offended by conduct even if it is not specifically directed at them. Explanatory notes to the Act provide the following examples:

A white worker sees a person from a black and minority ethnic background being subjected to racially abusive language, and complains that this has caused her environment to be offensive, even though she is white and not the subject of the abuse

An employer displays a topless calendar in the workplace. A male worker complains as he finds this offensive.

Second, the definition protects in relation to association or perception. For example, it provides protection for someone who experiences harassment because their partner or their son is a disabled person, or because they are perceived to be gay.

Although the Act does not specifically cover harassment on the grounds of
pregnancy and maternity, or marriage and civil partnerships, direct discrimination prohibits treatment such as bullying or harassment that results in a person being treated less favourably than others.

If Lord Rennard was sued for sexual harassment, the case would not hinge on whether he intended to harass – but rather on whether he engaged in unwanted conduct that violated someone’s dignity or created an ‘intimidating, hostile, degrading, humiliating or offensive environment’. Sexual harassment is all about power. It needs to stop. Lord Rennard should be relieved that he is not an employee, because the standards being applied would be very diffierent to those that would be applied to an employee in a similar situation.

To download my national guidance on the Equality Act 2010, click here