Harassment: where are we now? Sighing at a colleague in frustration could be discriminatory, tribunal rules
UK software engineer successfully sues employer for disability discrimination after complaining about manager’s sighing.
This recent headline has grabbed attention for what appears to be a workplace norm stretched to the limit, and understandably, Employers will be feeling exasperated about the changes and pitfalls of modern workplace. But in fact – are we not merely creating a more respectful workplace, case by case, and if an employer is ahead of the curve before 2026, then that employer will be well placed to continue seamlessly throughout 2026 and beyond.
The Employment Rights Bill, soon to be in force sometime 2026, has already made start on what is and what is not harassment, introducing third party sexual harassment back in October 2024.
All employers should, by now, have updated their harassment policies, have robust risk assessments in place bolstered by responsive reporting polices. This will satisfy the “all reasonable steps” prevention demanded by the Employment Rights Bill. If in doubt, check the EHRC’s existing technical guidance which provides advice on the types of actions employers can take to prevent and respond to workplace harassment, including its Employer 8-step guide. It is expected to be further updated in advance of the strengthened preventative duty being implemented.
However, the Employment Rights Bill seeks to introduce preventive duties for all protected characteristics, thus the headline above is not surprising.
The law behind the headline concerns the reasonable adjustments that employers should put in place for disabled employees to avoid discrimination claims succeeding. This means that if an employee meets the legal definition of disabled, they do not need to justify their condition with an actual medical diagnosis, because it is the effect of the workplace practice, procedure, or in this example, supervisor interaction on the employee, that counts.
Thus, an employer who is ahead of the curve will adopt a proactive and supportive role for all their employees, whether notified of a disability or not. As soon as an employer spots a potential issue with performance or attendance, the first question should not be “How can I dismiss this employee” but “how can I reasonably support this employee”.
How we can help you?
If you would like to discuss your diverse workforce or are concerned about how to manage conflicting business needs, please contact Jessica Gowar, Head of Employment at Ware & Kay on Wetherby 01937 583210 or email. [email protected].