recognised that it is of particular importance to take account of the reasons why a person is claiming they have been harassed, and in the majority of circumstances, the complainant's view will be the key factor. The complainant's perception will not be the only factor, however, and a tribunal will consider all the facts in the case before deciding whether unlawful harassment has in fact taken place.
The SDA also makes it unlawful to treat someone less favourably because they have rejected or submitted to harassment as defined above - for instance, refusing someone a job or a housing benefit application because they would not submit to particular unwanted conduct, or refusing someone promotion or a visiting order while in custody because they did submit to it.
Harassment and sexual harassment in the exercise of public functions
The express harassment and sexual harassment definitions in the SDA (apart from those relating to gender reassignment) also apply in the prohibition on harassment in the exercise of public functions.
Harassment and sexual harassment in schools, the provision of goods, facilities or services, and in the disposal or management of premises
The express provisions described above, addressing harassment in the areas of employment and vocational training (including further and higher education), do not apply to harassment in schools, in the provision of goods, facilities or services, or in the disposal or management of premises. However, the courts have determined that harassment is a form of direct discrimination (where the offending conduct constitutes less favourable treatment on the ground of sex than that which has or would have been afforded to someone of the opposite sex) and therefore it is also prohibited in these areas.
A school, provider of goods, facilities or services or public authority landlord etc. will be liable for any acts of unlawful sex discrimination done by its employees in the course of their employment or by its agents, whether or not they were aware of such acts, unless they have taken such preventative measures as are reasonably practicable.
In addition, where harassment is carried out by a person who is not an employee or agent of such a body, in circumstances closely connected to their activities (for example, a student harassing a fellow student or tenant harassing his neighbour, where both are tenants of the same public authority landlord), such a body may in some circumstances be liable for the harassment, in failing to take steps to prevent the recurrence of known harassment, if they did or would have taken action in relation to harassment of a complainant of the opposite sex.
From December 2007, harassment, sexual harassment and gender reassignment harassment will be expressly prohibited in relation to the provision of goods and services when the Goods and Services Directive 2004/113 is implemented into domestic legislation. Public authorities will need to ensure that their policies and procedures take these new provisions into account.
Discrimination in the employment field against married persons or civil partners
It is unlawful for an employer to discriminate against a married person or civil partner in relation to:
recruitment (although in very limited circumstances discrimination will be lawful if one of the defined genuine occupational requirements applies, for example