Harassment against school staff: the law, lies and liability

Harassment in schools is an unfortunately frequent topic in the news. The government has acknowledged the rise in harassment between pupils, and has recently published advice for schools on sexual violence and sexual harassment between pupils. However, it begs the question – what about harassment that school staff face, often by colleagues or parents of pupils?

The law protects staff against harassment in such situations. It is vital for schools to recognise and support staff when allegations of harassment are made, but also to take reasonable steps to prevent it happening in the first place. This is important to protect staff wellbeing but also to protect the school as it can be vicariously liable for harassment between members of staff.

The law

Harassment is covered by the Equality Act 2010, and is defined as any unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Harassment may involve conduct of a sexual nature (sexual harassment), or it may be related to age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.

This means that all of the following could be harassment: unwanted physical conduct; sending or displaying material that is pornographic or that some people may find offensive; suggestive behaviour which the harasser may perceive as harmless; offensive emails, text messages or social media content; or mocking a person’s disability.

The lies

There are several misconceptions about harassment, which we have clarified below:

• A one-off incident can amount to harassment: the victim need not have made the perpetrator aware that the conduct was unwanted.
• The fact that an employee has put up with the conduct for years, or joined in with ‘banter’, does not necessarily mean that the conduct is not ‘unwanted’.
• Harassment can be by association or perception. This means that, for example, all of the following situations are harassment: shunning a co-worker because he is gay; because he is perceived to be gay; or because someone else is gay.
• A person may be harassed even if they were not the intended ‘target’. For example, a person may be harassed by racist jokes about a different ethnic group if the jokes create an offensive environment. Likewise, if male members of staff download pornographic images on to their computers in an office where a woman works, she may make a claim for harassment if she is aware that the images are being downloaded and the effect of this is to create a hostile and humiliating environment for her.

The liability of the school

The school/Trust, as the employer, can be liable for harassment claims between employees because, for the purposes of the Equality Act 2010, anything done by an employee in the course of their employment is treated as having also been done by their employer (i.e. the school).

However, the school can defend itself if it can show that it took ‘all reasonable steps’ to prevent the employee from doing the discriminatory act or from doing anything of that description. To succeed with a ‘reasonable steps’ defence, the employer must have taken such steps before the act of discrimination or harassment occurred. Acting reasonably in response to a complaint of discrimination or harassment is not sufficient.

Therefore, we suggest that schools have appropriate policies in place (e.g. a dignity at work, an equal opportunities, and an anti-harassment and bullying policy). If you would like us to review your school’s policies, please do get in touch.

Schools should also take practical steps to implement the policies. It is advisable that schools make employees aware of the implications of the policies, train managers and supervisors in equal opportunities and harassment issues, and take steps to deal effectively with complaints, including taking appropriate disciplinary action. An allegation should still be dealt with properly (and indeed in line with the policies referred to above), but these pre-allegation steps help a school to rely on the ‘reasonable steps’ defence, should a claim be brought for vicarious liability.

The liability of a school is less clear cut when an employee has been harassed by a third party, such as a pupil, or a parent of a pupil. It is at least arguable that an employer’s reaction (or lack of reaction) to a parent’s harassment of an employee might still amount to discrimination or harassment. It is therefore important for schools to take appropriate steps if an employee alleges that he/she is being harassed by a pupil or parent. Our Education team can draft warning letters to parents or advise you in relation to barring parents from the school site should this become necessary; they can also advise on how to deal with pupil related incidents.

Victimisation

If an employee makes a complaint of harassment or brings a claim, and then suffers detriment by the employer because of this, they may then have a separate claim against the school for victimisation. The Equality Act 2010 protects employees who are subject to victimisation by their employer.

False statements or allegations made in bad faith are not protected. If the statement/allegation was made in good faith and later turned out to be false, this will be a protected under the legislation.

Schools must ensure they do not subject an employee to detriment where the employee makes a complaint or claim of harassment. All allegations should be taken seriously and dealt with fairly and in accordance with the school’s policies and procedures.

Conclusion

In summary, harassment in schools is not just limited to between pupils, as staff can be victims too. It is important for schools to take reasonable steps to prevent this, and respond appropriately should an allegation arise.