Should Harriet Harman be prosecuted for her remarks about Danny Alexander?

You will have heard that today Harriet Harman referred to Danny Alexander as a "ginger rodent" in a speech to a Labour conference in Oban.

To her credit, she later withdrew the remark and apologised. But it does raise an interesting question. Could Harriet Harman be prosecuted under the Equalities Act that she herself did so much to bring on to the statute book?

To begin with a couple of sources that not everyone will trust...

At the start of the month the Daily Mail published an article on this act, which was adopted and passed by the Coalition. Under the headline "Death of the office joke: Coalition enacts Harriet's PC equality law which means ANYONE can sue for ANYTHING that offends them" it reported:

It creates the controversial legal concept of ‘third party harassment’, under which workers will be able to sue over jokes and banter they find offensive – even if the comments are aimed at someone else and they weren’t there at the time the comments were made.

They can sue if they feel the comments ‘violate their dignity’ or create an ‘intimidating, hostile, degrading, humiliating or offensive environment’.

A one-off incident is enough to sue – there is no need for the ‘victim’ to have warned the perpetrator that their comments are unwelcome.

While an article by Tim Black for Spiked argued that the Act does not simply consolidate existing legislation but introduces a number of new offences in the field:

The most notable of these is the concept of ‘third-party harrassment’. So while it was already an offence for an employer to pick on an employee on the basis of race or gender, an employer will now be liable for any employee ‘harrassment’, too. This means that if someone at work feels that someone else’s comments ‘violate their dignity’ or create an ‘intimidating, hostile, degrading, humiliating or offensive environment’, they can sue their employer.

As I said, these two sources will not satisfy everyone - for the record I have written twice for Spiked but never for the Daily Mail - so here is a less controversial one.

An article on the BBC website - "The new Equality Act and you" - says:

Harassment will have the same definition across all strands of discrimination.

The focus will be on preventing "unwanted conduct which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment".

A one-off incident may amount to harassment, and so the victim need not have made the perpetrator aware that the conduct was unwanted.

The definition covers conduct which is "related to" a protected characteristic - a protected characteristic being sex, race, religious belief etc.

This means that there is no need for the particular employee's characteristics to be the reason for the unwanted conduct in order to trigger liability.

I take this to mean that because many Scottish people have red hair Harman's remarks should be seen as racist, even if she had no intention to offend or harass the Scots.

And are the remarks offensive? As I understand it, if Danny Alexander finds them offensive, then they are offensive. The question of Harman's intent does not arise.

Besides, the Conservative MP Stewart Jackson who, as he points out, shares a workplace with Harman and Alexander, has already tweeted that he finds the remarks offensive. That is the end of the matter, isn't it?

I was surprised and disappointed when the Coalition passed Harman's Equalities Act unexamined and unamended. I suppose the need to detoxify the Conservative brand took precedence over any considerations of liberty for the masses.

But as far as I can see there is an open and shut case for Harman to be prosecuted under it. Can anyone give any good reasons why she should not be?