4 Harassment
54. In its Consultation Paper the Government did
not propose, at that stage, to make harassment on the grounds
of sexual orientation unlawful in relation to goods, facilities,
services, premises and public functions.[43]
The reason given for this was that extending protection from harassment
beyond the employment sphere raises complex arguments, and the
question of how harassment should be applied across all the different
equality strands was being considered as part of the Discrimination
Law Review.[44]
55. The Northern Ireland Regulations, however, do
cover harassment on grounds of sexual orientation. They provide
that a person, A, subjects another person, B, to harassment "where,
on the ground of sexual orientation, A engages in unwanted conduct
which has the purpose or effect of (a) violating B's dignity,
or (b) creating an intimidating, hostile, degrading or offensive
environment for B".[45]
Conduct shall be regarded as having such an effect only if, having
regard to all the circumstances, including, in particular the
perception of B, it should reasonably be considered as having
that effect.[46]
56. During the passage of the Equality Act, the House
of Lords removed harassment on grounds of religion or belief from
the Bill. Lord Lester, who moved the relevant amendment to the
Bill, explained that one of the main reasons for deleting harassment
from that Bill was concern for the impact on freedom of speech
in respect of comments made about the beliefs of others. In
our view, however, different considerations apply in relation
to sexual orientation, race and sex, because these are inherent
characteristics. We therefore welcome the inclusion of harassment
as a separate instance of unlawful discrimination within the Northern
Ireland Regulations and we recommend that it also be included
in the forthcoming Regulations for the rest of Great Britain.
57. Nevertheless, we are concerned that the harassment
provision in the Northern Ireland Regulations is drawn too widely
and defined too vaguely. Conduct which has the purpose or effect
of "violating dignity" or[47]
creating an "offensive environment" is potentially a
very wide category of conduct given the inherent vagueness of
the terms "dignity" and "offensive". What
constitutes a violation of dignity or an offensive environment
will inevitably involve a degree of subjectivity. This is mitigated
to some extent by the express requirement that conduct shall be
regarded as having these effects only if it should reasonably
be considered as doing so,[48]
but even then one of the relevant circumstances to which regard
must be had "in particular", is the perception of the
person being harassed.
58. The width and vagueness of the definition of
harassment in the Northern Ireland Regulations gives rise to a
risk of incompatibility with both freedom of speech in Article
10 ECHR and freedom of thought, conscience and religion in Article
9. The potential interference with freedom of speech arises because
people may feel inhibited from saying something if they fear that
a person may perceive it as a violation of their dignity or as
creating an offensive environment. The potential interference
with freedom of religion and belief arises because explanations
of sincerely held doctrinal beliefs might be perceived as violating
a person's dignity or creating an offensive environment. The exemption
for religious organisation in Regulation 16 of the Northern Ireland
Regulations does not provide an exemption for harassment so a
person who invokes the exemption in that regulation risks being
caught by the harassment provision if they explain their reasons
for acting. As was explained in the debates on the Northern Ireland
Regulations, where a person carrying out an exempt activity seeks
to explain why a person has been excluded from that activity,
there is a risk that the person being told will regard the explanation
as violating their dignity or as offensive, and therefore claim
that they have been harassed.
59. We recommend that the new Regulations for
Great Britain contain a more precise and narrower definition of
harassment, to reduce the risk of incompatibility with the right
to freedom of speech and freedom of religion and belief.
43 CP para. 4.18. Back
44
CP para. 4.17. Back
45
Reg. 3(3). Back
46
Reg 3(4). Back
47
The EU Framework Directive by contrast uses the word "and",
not "or" (EU Framework Directive on Equal Treatment
in Employment and Occupation, 2000/78 EC). Back
48
Reg. 3(4). Back
|
