Harassment

Author: Fiona Cuming

Updating author: Tina McKevitt

Summary

Overview

Section 40 of the Equality Act 2010 provides that employers must not harass employees or applicants.

The Act protects employees from harassment in respect of all the protected characteristics except marriage and civil partnership, and pregnancy and maternity. However, cases of harassment in relation to pregnancy and maternity may be brought as sex-related harassment claims.

Section 26 sets out three forms of harassment. For all forms, the employee must show that they were subjected to unwanted conduct. Unwanted conduct covers a wide range of behaviour.

The unwanted conduct must have the purpose, or effect of, violating the employee's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The definition of "employment" under s.83(2) of the Equality Act 2010, is broader than the employment definition used for unfair dismissal and other employment claims. This means that the use of "employee" in this section should be read as including workers, apprentices, etc.

With effect from 26 October 2024, employers have a positive duty to take reasonable steps to prevent sexual harassment of their employees (s.40A). 

Relevant protected characteristics

Protection from harassment applies to seven protected characteristics:

While the harassment provisions do not apply to the protected characteristic of pregnancy and maternity, cases of harassment in relation to pregnancy and maternity may be brought as sex-related harassment claims.

Types of harassment

Section 26 of the Equality Act 2010 prohibits three types of harassment:

Harassment occurs where a person engages in unwanted conduct related to a protected characteristic, which has the purpose or effect of:

  • violating an employee's dignity; or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Conduct that has one of these effects may amount to harassment even if the effect was unintentional.

Tribunals will approach a harassment claim by asking the following questions:

  • What was the conduct in question?
  • Was it unwanted?
  • Did it have the purpose of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them?
  • Or did it have the effect of doing so having regard to an objective, reasonable standard and the perception of the employee?
  • Was the conduct related to the protected characteristic relied on?

Harassment may occur over a period of time through a series of relatively minor incidents of harassment or it may occur through one blatant incident. An act of harassment may include an omission or a failure to act.

An employee does not need to show that another employee was, or would have been, treated more favourably. An employee simply needs to show that the harassment is related to the protected characteristic that they rely on.

Unwanted conduct

"Unwanted conduct" means conduct that is "unwelcome" or "uninvited". "Unwanted" does not mean that an employee must expressly object to the conduct before it is deemed to be unwanted. A serious one-off incident can also amount to harassment (Employment statutory code of practice).

An employee may find conduct unwanted even if the conduct has not been directed specifically at them, or they do not share the protected characteristic to which the conduct is related. For example, a black or white employee may suffer harassment related to race if they overheard a manager making offensive comments about black people.

Unwanted conduct covers a wide range of behaviour. Examples include:

  • banter, jokes, taunts or insults that are sexist, racist, ageist, transphobic, homophobic or derogatory against a protected characteristic;
  • unwanted physical behaviour, for example touching, pushing or grabbing;
  • excluding someone from a conversation or a social event or marginalising them from the group;
  • mimicking or making fun of someone's disability;
  • derogatory or offensive comments about religion or belief;
  • unwelcome comments about someone's appearance or the way they dress that is related to a protected characteristic;
  • "outing" (ie revealing their sexual orientation against their wishes), or threatening to "out" someone;
  • deliberately using the wrong name and/or pronoun for someone (for example following a person's gender transition or after they have communicated that they identify as non-binary);
  • displaying images that are offensive (for example racially offensive images); and
  • excluding or making derogatory comments about someone because of a perceived personal characteristic, or because they are associated with someone with a protected characteristic (see direct discrimination by association and by perception).

An employee's dismissal can amount to an act of harassment. Similarly, if an employee resigns in response to repudiatory conduct that constitutes or includes unlawful harassment, their constructive dismissal is itself capable of amounting to unwanted conduct and an act of harassment under s.26 (Driscoll v V & P Global Ltd and another EAT/000876/20 & EAT/000877/20).

The employee must show that the unwanted conduct related to a relevant protected characteristic.

Unwanted conduct "related to" a protected characteristic requires an intense focus on the context of the offending words or behaviour and the "mental processes" of the alleged harasser (Warby v Wunda Group plc EAT/0434/11 and Bakkali v Greater Manchester Buses (South) Ltd (t/a Stage Coach Manchester) [2018] IRLR 906 EAT).

The context may point strongly towards or strongly against a conclusion that the harassment was related to the protected characteristic (Nazir and another v Asim and another EAT/0332/09).

For example, in Warby, the EAT agreed with the tribunal that the employee was not subjected to unwanted conduct related to her sex when her manager accused her of lying about a miscarriage. "Context is everything" and her manager had made the comment in the context of a workplace discussion about her lying. There was "no necessary inherent discrimination" in her line manager's words in the context in which he used them.

Similarly, in Bakkali, the EAT upheld the tribunal decision that asking a Muslim employee if he supported IS Daesh did not amount to harassment because, given the context, the offending comment was not "related to" his religious belief or race. The comment followed on from an earlier conversation where the employee had mentioned some "positive sounding comments" from a journalist about IS.

The following are examples of unwanted conduct related to a protected characteristic:

  • The shift supervisor engaged in unwanted conduct related to sex when he referred to an employee in his team as a "bald cunt" and threatened "to knock him out". While the tribunal accepted that bad language was commonplace on the factory floor, it considered that the shift supervisor crossed the line when he made personal remarks to the employee about his appearance (British Bung Manufacturing Company Ltd and another v Finn [2023] EAT 165).
  • In a return-to-work meeting after a stress-related absence, the sergeant referred to "One Flew Over the Cuckoo's Nest" after telling the constable that he had been absent because he went "a bit doolally fucking tap". While the tribunal accepted that the comments were not made with the intention of causing offence, they amounted to unwanted conduct as it was reasonable for the constable to interpret them as being derogatory and negative about his disability (Gardner v Chief Constable of West Yorkshire Police and another ET/1807082/2013/2).
  • The female manager worked in a male-dominated environment. She was on the receiving end of comments, such as "the only reason you have got this job is because you have tits and a fanny", and when she passed on an unpopular instruction she was told "it does not matter anyway as we do not like you so we won't be doing it". This was unwanted conduct related to her sex (Fairbank v Royal Mail Group Ltd ET/2412403/09 & ET/2412403/09).
  • Two male managers had a good working relationship but, after a female manager joined the company, one repeatedly made suggestions to the other that it was time for him to settle down and he should go on a date with the female manager. The manager was embarrassed by these comments and the conduct was unwanted and related to his sex or was of a sexual nature (Craddock v Fontoura t/a Countyclean ET/1402999/09).
  • The Polish employee had to quarantine during the pandemic following his return from Poland after attending his father's funeral. A series of emails sent to him by his line manager threatening disciplinary action for (potentially) exceeding the authorised leave period amounted to harassment because they were based on the manager's negative view of the employee's "prior history", and "that negative view in turn was influenced by [his] race" (NSL Ltd v Zaluski [2024] EAT 86).
  • The sales manager, who is British Indian, was subjected to harassment related to his race when his new sales director got his name wrong on four occasions during a "toxic" car journey (Taneja v Phoenix Whirlpools Ltd ET/1801565/22).

"Related to" a protected characteristics also covers these circumstances (Employment statutory code of practice):

  • The employee is subjected to unwanted conduct not because they have the protected characteristic but because of their association with someone who has that protected characteristic (Coleman v Attridge Law and another [2008] IRLR 722 ECJ). For example, an employee has a son with a severe disfigurement. His work colleagues make offensive remarks to him about his son's disability. The worker could have a claim for harassment related to disability.
  • The unwanted conduct occurs because the employee is perceived to possess the protected characteristic even if they do not (although it has not yet been confirmed if this applies to the protected characteristic of disability). For example, a Sikh employee wears a turban to work. His manager wrongly assumes he is Muslim and subjects him to Islamophobic abuse. The employee could have a claim for harassment related to religion or belief because of his manager's perception of his religion.
  • The employee is subjected to homophobic banter even though his colleagues know that he is not gay. This could amount to sexual harassment related to sexual orientation because the form of the abuse relates to sexual orientation.

Purpose or effect

If the conduct is found to have had the purpose of violating the employee's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, it is not relevant if the conduct did not in fact have that effect (Richmond Pharmacology v Dhaliwal EAT/0458/08).

However, in many cases, unintentional conduct, or even conduct that is intended to be amusing or friendly, may amount to harassment if its effect is to violate the employee's dignity. For example, in Garrett v Lidl Ltd EAT/0541/08, the Employment Appeal Tribunal (EAT) held that the tribunal, having found that the employee was upset by comments made to her, erred in failing to consider if the comments had the effect of causing distress or a hostile environment even if those consequences were not intended by the alleged discriminator.

In deciding whether the conduct had the effect of violating the employee's dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to them, a tribunal must take each of the following into account (s.26(4)):

  • The employee's perception.
  • The other circumstances of the case.
  • Whether it is reasonable for the conduct to have that effect (which is an objective test).

This means that it is not sufficient for an employee simply to show that the conduct violated their dignity as the tribunal must also decide if it is reasonable for them to claim that the conduct had that effect, taking into account their perception.

The words "violating dignity" or "intimidating, hostile, degrading, humiliating or offensive environment" are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment (Grant v HM Land Registry and another [2011] EWCA Civ 769).

In Ahmed v Cardinal Hume Academies EAT/0196/18, the employee sought to persuade the EAT that there may be circumstances where it would be possible to conclude that the conduct had the proscribed effect even if it might not be reasonable for it to have that effect. The EAT disagreed. It said that the correct approach is set out in Pemberton v The Right Reverend Richard Inwood [2018] Civ 564 CA in that if it was not reasonable for the conduct to be regarded as violating the employee's dignity, or creating an adverse environment for them, then it should not be found to have done so.

Harassment of a sexual nature

The second type of harassment is harassment of a sexual nature, ie sexual harassment.

Under the repealed Sex Discrimination Act 1975, there was no provision dealing specifically with sexual harassment as it was recognised only as a form of direct sex discrimination. However, case law under the Sex Discrimination Act remains relevant as s.26(2) of the Equality Act 2010 broadly replicates the same effect as the repealed provisions, albeit that different tests are involved.

Under s.26(2) of the Equality Act 2010, sexual harassment occurs where:

  • a person engages in unwanted conduct of a sexual nature; and
  • the conduct has the purpose or effect of:
    • violating the employee's dignity; or
    • creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Conduct of a sexual nature should be defined on a common-sense basis by reference to the facts of each particular case (Driskel v Peninsula Business Services Ltd and others EAT/1120/98). The conduct can occur in many forms. Examples include:

  • physical conduct of a sexual nature, unwelcome physical contact or intimidation;
  • persistent suggestions to meet up socially after a person has made clear that they do not welcome such suggestions;
  • showing or sending offensive or pornographic material by any means (for example by text, video clip, email or by posting on the internet or social media);
  • unwelcome sexual advances, propositions, suggestive remarks, or gender-related insults;
  • offensive comments about appearance or dress, innuendo or lewd comments; and
  • leering, whistling or making sexually suggestive gestures.

Rejection of, or submission to, harassing behaviour

The third type of harassment is where an employee is subjected to less favourable treatment because they rejected or submitted to unwanted conduct of a sexual nature or related to gender reassignment or sex.

Under s.26(3) of the Equality Act 2010, a person will be liable for harassment where:

  • they or another person engages in unwanted conduct of a sexual nature or unwanted conduct related to gender reassignment or sex;
  • their conduct has the purpose or effect of violating the employee's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them; and
  • because of the employee's rejection of, or submission to, the conduct, they treat the employee less favourably than they would have treated them if they had not rejected or submitted to the conduct.

The less favourable treatment may be caused by the person who carried out the initial unwanted conduct or by another person (s.26(3)(a)).

The Employment statutory code of practice gives two examples:

  • A shopkeeper propositions one of his shop assistants. She rejects his advances and then is turned down for a promotion that she believes she would have got if she had accepted the shopkeeper's advances. The shop assistant would have a claim for harassment.
  • A female employee is asked out by her team leader and she refuses. The team leader feels resentful and informs the head of the division about the rejection. The head subsequently fails to give the female employee the promotion she applied for, even though she is the best candidate. She knows that the team leader and the head are good friends and believes that her refusal to go out with the team leader influenced the head's decision. The female employee would have a claim for harassment even though it was the head who made the decision not to promote her and not the team leader who had asked her out.

Post employment

An act of harassment committed after the working relationship has come to an end will be unlawful if it would have been unlawful during the course of the working relationship, where the harassment arises out of or is closely connected to that former relationship (s.108).

Duty to prevent sexual harassment

Employers in England, Wales and Scotland have a positive duty to "take reasonable steps to prevent sexual harassment" of their employees in the course of their employment (s.40A of the Equality Act 2010, inserted with effect from 26 October 2024 by the Worker Protection (Amendment of Equality Act 2010) Act 2023). 

The duty is anticipatory in that employers should not wait until a complaint of sexual harassment has been raised before they take any action. The duty requires that employers should anticipate scenarios where their staff may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place, including preventing sexual harassment of their staff by third parties. However, if sexual harassment has occurred, an employer should take action to stop sexual harassment from happening again (EHRC guidance on sexual harassment and harassment at work).

"Reasonable steps" will depend on the specific circumstances of the employer, including its size and sector and other relevant facts (Explanatory notes to the Act). The EHRC's guidance suggests that other relevant factors may include:

  • the nature of the working environment;
  • the risks present in the workplace;
  • the nature of any interaction with third parties (for example the type of third party, frequency of contact, environment);
  • the likely impact of taking a particular step and whether a different approach could be more effective;
  • the time, cost and potential disruption associated with taking a particular step weighed against its potential benefit;
  • whether concerns of sexual harassment have been raised with the employer;
  • compliance with relevant regulatory standards (such as those set by the Financial Conduct Authority or General Medical Council); and/or
  • whether any steps already taken have been effective or ineffective (for example if a further incident of sexual harassment occurs after steps have been taken, this may indicate that additional and/or alternative action should be considered).

The EHRC says that a step may be reasonable, even if it would not have prevented a particular act of sexual harassment.  

The EHRC may enforce a standalone breach of the duty as an unlawful act under its existing enforcement powers.

Individual employees cannot bring standalone claims in the employment tribunal for an alleged breach of this preventative duty. However, where a breach of the duty is established during the course of a successful sexual harassment claim, it may lead to increased compensation.

Acas has updated its guidance on sexual harassment.

Third-party harassment

Previously, under s.40 of the Equality Act 2010, an employer could potentially be liable if an employee was harassed by a third party (for example a client or supplier) during the course of employment. The third-party harassment provisions were revoked on 1 October 2013. However, the Government's Employment Rights Bill, which it introduced to Parliament on 10 October 2024, reintroduces employer liability for third-party harassment. 

Until the third-party harassment provisions come into force, there is no scope for a complaint of third-party harassment to succeed under s.26 of the Equality Act 2010. The use of the words "related to" is not sufficient to convey an intention that employers who are themselves innocent of any discriminatory motivation should be liable for the discriminatory acts of third parties even if they could have prevented them. Negligent failure to prevent another's discriminatory acts is "a very different kind of animal from liability for one's own" (Unite the Union v Nailard [2018] IRLR 730 CA).

An employer is liable in connection with a third party's conduct towards an employee only where the employer's action or inaction is motivated by the employee's protected characteristic (Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School [2003] IRLR 512 HL and Bessong v Pennine Care NHS Foundation Trust [2020] IRLR 4 EAT).

The Employment Appeal Tribunal (EAT) has set out the circumstances where an employer's failure to act in respect of the actions of a third party might give rise to liability (Conteh v Parking Partners Ltd EAT/0288/10). The EAT said that these circumstances are only where:

  • the employer failed to take any action after the employee had reasonably asked it to do so;
  • the employer's failure to take action itself created an environment that was intimidating, hostile, degrading, humiliating or offensive to the employee; and
  • the employer's inaction was related to the protected characteristic.

Conteh reflects the reasoning of the House of Lords in Pearce (Unite the Union v Nailard [2018] IRLR 730 CA).

However, an employee who has been subjected to third-party harassment may, in certain circumstances, have the potential to take action directly against the third party or the third party's employer under the Protection from Harassment Act 1997.

Protection from Harassment Act 1997

Under this Act, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to "harassment". The harassment may consist of bullying, intimidation or harassment, and does not need to be on a prohibited ground (Majrowski v Guy's and St Thomas's NHS Trust [2006] IRLR 695 HL).

To succeed, an employee must show that there was an element of real seriousness to the harassment. The actions must be calculated in an objective sense to cause alarm and distress and must be capable of being objectively judged to be oppressive and unreasonable. Irritating, annoying and upsetting conduct, such as shouting and swearing by a supervisor, will not necessarily be a breach of the Act (Hammond v International Network Services UK Ltd [2007] EWHC 2604 HC).

The conduct must be "oppressive and unacceptable" as opposed to merely unattractive, unreasonable or regrettable (Veakins v Kier Islington Ltd [2010] IRLR 132 CA).

A claim can be brought by someone who is not the target of the conduct complained of if they are "foreseeably likely to be directly alarmed or distressed by it" (Levi and another v Bates and others [2015] EWCA Civ 206 CA).

Future developments

Third-party harassment: On 10 October 2024, the Government introduced the Employment Rights Bill to Parliament. Section 16 amends the Equality Act 2010 to provide for the reintroduction of employer liability for third-party harassment. The provision encompasses all three types of harassment set out under s.26 of the Equality Act 2010 and extends to all the protected characteristics covered by harassment. When s.16 is in force, an employer will be liable if a third party (for example clients, customers, contractors or suppliers) harasses an employee during the course of their employment and the employer failed to take all reasonable steps to prevent the third party from doing so. 

Sexual harassment: The Employment Rights Bill amends the new s.40A(1) of the Equality Act to add the word "all" before "reasonable steps" in respect of the positive duty for employers. This means that, when this provision comes into force, employers must "take all reasonable steps to prevent sexual harassment" of their employees. The Bill also gives the Government the power to make regulations setting out the steps that an employer must take to comply with the positive duty. The steps may include:

  • carrying out assessments of a specified description;
  • publishing plans or policies of a specified description; and
  • the manner in which complaints of sexual harassment are reported and handled.

The Bill also amends the whistleblowing provisions in the Employment Rights Act 1996 to add an allegation of sexual harassment to the list of relevant failures in relation to which a worker may make a protected disclosure. 

It is not known when the provisions under the Employment Rights Bill will come into force. In its Next Steps to Make Work Pay policy paper, the Government said it expects to begin consulting in 2025 on the various measures covered in the Bill and that it anticipates that "the majority of reforms will take effect no earlier than 2026".