Behavioural Standards Guidance (Revised core values) - October 2024

7. Defining discrimination (direct or indirect), victimisation, bullying, sexual harassment and harassment

Direct discrimination is less favourable treatment directly because of a protected characteristic.

Example:

Geraint wants to work in social care. He applies for a job within the social care team, but his application is rejected because they think women have better caring skills and would have more credibility with clients. This is direct discrimination because of sex.

Indirect discrimination is when everyone's treated the same but people with a protected characteristic are put at a disadvantage.

Example:

Jay has type 1 diabetes and works as a catering assistant in a school. The supervisor insists everyone has a break at the same time, with no other breaks. Jay sometimes needs snacks between meals to help manage their diabetes. Jay's supervisor says they will not make any changes to this practice. This is indirect discrimination.

Victimisation is when someone is treated less favourably because of being involved with a discrimination or harassment complaint and is a specific type of discrimination under the law (Equality Act 2010).

Example:

Luca was a witness at an employment tribunal, supporting a colleague who made a claim of sex discrimination.

Luca applies for a promotion and does not get it. A member of the selection panel says Luca is a troublemaker who supported a discrimination claim against the company.

If this is the reason for the panel's decision, Luca is being victimised.

Bullying is “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient”.

Examples:

• constantly criticising someone's work.
• spreading malicious rumours about someone.
• constantly putting someone down in meetings.
• deliberately giving someone a heavier workload than everyone else.
• excluding someone from team social events.
• putting humiliating, offensive or threatening comments or photos on social media.

Bullying can also happen from staff towards someone more senior, for example a manager. This is sometimes called 'upward bullying' or 'subordinate bullying'. It can be from one employee or a group of employees.

Examples of upward bullying can include:

• showing continued disrespect.
• refusing to complete tasks.
• spreading rumours.
• constantly undermining someone's authority.
• doing things to make someone seem unskilled or unable to do their job properly.

It can be difficult for someone in a managerial or leadership role to realise they're experiencing bullying behaviour from their staff. It's important to consider the real reasons for the behaviour. For example, there might be a wider issue with the culture of the team that can be identified and addressed.

Sexual harassment occurs when a worker is subjected to unwanted conduct, and which is of a sexual nature. The conduct need not be sexually motivated, only sexual in nature.

Examples:

A male worker alters a pornographic image by pasting an image of his female colleague’s face on to it. He then sends it to their other colleagues, causing them to ridicule her. There was no sexual motivation behind this act, but the use of the image is sexual in nature.

A female worker has a brief sexual relationship with her supervisor. The worker tells her supervisor that she thinks it was a mistake and doesn’t want the relationship to continue. The next day, the supervisor grabs the worker’s bottom, saying ‘Come on, stop playing hard to get’. Although the original sexual relationship was consensual, the supervisor’s conduct after the relationship ended is unwanted conduct of a sexual nature.

Conduct ‘of a sexual nature’ includes a wide range of behaviour, such as:

• sexual comments or jokes.
• displaying sexually graphic pictures, posters or photos.
• suggestive looks, staring or leering.
• propositions and sexual advances.
• making promises in return for sexual favours.
• sexual gestures.
• intrusive questions about a person’s private or sex life or a person discussing their own sex life.
• sexual posts or contact on social media.
• spreading sexual rumours about a person.
• sending sexually explicit emails or text messages, and
• unwelcome touching, hugging, massaging or kissing.

An individual can experience unwanted conduct from someone of the same or a different sex.

Sexual interaction that is invited, mutual or consensual is not sexual harassment because it is not unwanted. However, sexual conduct that has been welcomed in the past can become unwanted.

Harassment is “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”. Conduct that has one of these effects can be harassment even if the effect was not intended.

The relevant protected characteristics are age, disability, gender reassignment (including gender identity and gender expression), race (including colour, nationality, and ethnicity), religion, belief or non-belief, sex and sexual/romantic orientation.

Examples:

A Sikh worker wears a turban to work. His manager wrongly assumes he is Muslim and subjects him to Islamophobic abuse. The worker could have a claim for harassment related to religion or belief because of his manager’s perception of his religion.

A worker is subjected to homophobic banter and name calling, even though her colleagues know she is not gay. Because the form of the abuse relates to sexual orientation, this could amount to harassment related to sexual orientation.

Unwanted conduct which essentially means the same as ‘unwelcome’ or ‘uninvited’ covers a wide range of behaviour. It can include:

• spoken words.
• banter.
• written words.
• posts or contact on social media.
• imagery.
• graffiti.
• physical gestures.
• facial expressions.
• mimicry.
• jokes or pranks.
• acts affecting a person’s surroundings.
• aggression, and
• physical behaviour towards a person or their property.

The following examples show the variety of ways in which unacceptable behaviour can occur. The list is neither exhaustive nor exclusive; it serves to illustrate a range of potential indicators of unacceptable behaviour:

• Using aggressive language, threatening, ridiculing, ignoring people or shouting.
• Shifting blame to others.
• Communicating with people at home unnecessarily (especially demanding work when the person is absent due to sickness or ill health).
• Focussing only on weaknesses.
• Bringing up details of someone’s private life.
• Leaving impossibly long lists of tasks and making unreasonable demands.
• Criticising people in their absence.
• Inappropriate comments or jokes.
• Questioning an individual about their sexual/romantic relationship/preferences.
• Frequent comments about aspects of physical appearance or using forms of address that are demeaning.
• Repeated staring or leering or suggestive looks at parts of the body.
• Physical contact ranging from unwanted touching of any kind.
• Making unwanted sexual advances.
• The use of pin ups, posters or electronic display e.g., pornographic pictures, objectionable images.
• Comments about, or the excluding of, a colleague from workplace talk or activities, on the grounds of age, race (including colour, nationality and ethnicity), sex, gender reassignment (including gender identity and gender expression), disability, sexual/romantic orientation and religion or belief (including non-belief), marriage or civil partnership, pregnancy or maternity.
• Threatening or implying that you will cause the person to lose their job or fail to get a promotion or suffer some other form of career difficulty or financial disadvantage. This can also include inviting employees to leave their employment if they raise a concern.
• Using language and/or gestures in such a way that someone fears for their personal safety.
• Coercing or encouraging someone to join the harassment or bullying of another person.

For further details relating to the definitions of bullying and harassment please refer to Appendix 1.