Claiming Harassment within the Workplace

Key Elements of Harassment

Definitions

There are three definitions of harassment in section 26 of the Act:

1. The general definition of  harassment has to be related to a protected characteristic,

2. conduct of a sexual nature, and

3. Less favourable treatment because of a person’s rejection of or submission to harassment of a sexual nature or harassment related to sex or gender reassignment.

Section 26 Equality Act 2010

The definition of harassment is wide-ranging and can include behaviour ranging from malicious or unintentional.

Section 26(1) EA states: A person (A) harasses another (B) if –  

“(a)  A engages in unwanted conduct related to a relevant protected characteristic, and 

(b)   the conduct has the purpose or effect of –  

(i)   violating B’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”

Section 26(4) EA provides that

“in deciding whether the conduct had the effect referred to in subsection (1)(b) each of the following must be taken into account –

(a)  the perception of B;

(b)  the other circumstances of the case;

(c)  whether it is reasonable for the conduct to have that effect.”

Harassing Behaviour of a Sexual Nature

Section 26(2) EA provides that a person (A) also subjects a woman/man to harassment if:

“(a) A engages in unwanted conduct of a sexual nature, and

 (b) the conduct has the purpose or effect referred to in subsection (1)(b).”

Section 26(3) EA also makes it unlawful to treat a person less favourably because they have either rejected or submitted to sexual harassment or harassment related to sex (or gender reassignment). It provides that harassment will occur if: 

“‘because of B’s rejection of or submission to the conduct, A treats B less favourably than would treat B if B had not rejected or submitted to the conduct.”

Defences

There is no statutory defence to harassment. However, the alleged perpetrator can claim that the definition has not been made out, by contending either that the conduct was not unwanted or that it did not have the effect on the claimant as defined under s.26 EA. Employers, who are vicariously liable under s.109(1) EA, can deny liability (s.109(4) EA).

Examples of Harassing Behaviour

Exclusion; spreading malicious rumours; bullying; misuse of power; unwelcome sexual advances or other oppressive behaviour; undermining with excessive criticism; preventing individuals from progressing; overtly insulting behaviour. Here is a detailed summary of the provided information on harassment:

Protected Characteristics

The Equality Act 2010 addresses discrimination concerning specific protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. However, for the purpose of harassment claims under Section 26, pregnancy and maternity, and marriage and civil partnership are not considered relevant protected characteristics. Despite this, unwanted conduct related to these characteristics could potentially give rise to sex or sexual orientation harassment claims or direct discrimination claims. There are also further exceptions depending on which part of the Equality Act 2010 applies; for instance, Part 3 (services and public functions) excludes religion or belief and sexual orientation harassment, and Part 4 (premises) does not apply to age and marriage and civil partnership. A claimant must demonstrate they are disabled as defined by Section 6 of the Equality Act 2010 to succeed in a disability harassment claim, not merely assert it.

Future Reforms

Significant legislative changes are anticipated:

Re-introduction of third-party harassment liability

The Employment Rights Bill (ERB) proposes to reintroduce employer liability for third-party harassment where the third party harasses an employee in the course of their employment and the employer fails to take all reasonable steps to prevent it.

Prevention of Non-Disclosure Agreements (NDAs)

Forthcoming legislation, specifically Section 1 of the Higher Education (Freedom of Speech) Act 2023 (HEFSA 2023) and Section 17 of the Victims and Prisoners Act 2024 (VPA 2024), will prevent the use of NDAs in certain circumstances, such as in relation to sexual abuse, sexual harassment, or other bullying/harassment by higher education providers, and for victims of criminal conduct disclosing information to law enforcement or legal professionals.

General Definition of Harassment

Unwanted Conduct

"Unwanted" means unwelcome or uninvited, and express objection is not always required for conduct to be deemed unwanted. The perception of the claimant determines whether conduct is unwanted. Examples of unwanted conduct include spoken/written words, banter, social media posts, imagery, physical gestures, mimicry, jokes, pranks, aggression, and physical behaviour. Even inaction, such as an employer failing to prevent third-party harassment, can be unwanted conduct.

The fact that a claimant previously tolerated or participated in "banter" does not automatically mean the conduct is not unwanted, as it can "overstep the mark" and become unwanted. For instance, a loud, self-evidently unwanted comment does not require the victim to object.

Related to a Protected Characteristic

The Equality Act 2010 "related to" test for harassment is wider than the "because of" test for direct discrimination and the pre-Equality Act 2010 "on grounds of" test. It covers:

• Conduct meted out by reason of an individual's own protected characteristic.

• Conduct related to a protected characteristic because of the form it takes, regardless of the reason for it (e.g., racist or homophobic "banter").

• Conduct directed at others that is witnessed by the claimant.

• Harassment based on someone else's protected characteristic (associative harassment) or based on the perception that the victim has a protected characteristic (perception harassment).

A tribunal must make a clear finding of fact regarding the connection between the conduct and the protected characteristic. The harasser's motivation is not necessarily determinative, nor is the claimant's belief that the conduct was related to a characteristic. Harassment can be "related to" a protected characteristic even if the harasser is unaware of the victim's characteristic or believes the victim does not have it. A person's accent can be an important part of their national identity, and derogatory comments about it can be related to race.

Mishandling of grievances about discrimination generally does not amount to harassment "related to" the protected characteristic itself, unless the failure to investigate is intrinsically linked to the characteristic or involves ageist language.

Purpose or Effect of Violating Dignity or Creating a Proscribed Environment

Harassment under Section 26(1) can occur if the unwanted conduct has either:

• The purpose of violating dignity or creating a proscribed environment. If purpose is shown, the test is met, and the reasonableness of the claimant's perception is irrelevant.

• The effect of violating dignity or creating a proscribed environment. When assessing "effect", the tribunal must consider: B's perception, other circumstances of the case, and whether it is reasonable for the conduct to have that effect.

B's Perception

The effect is assessed subjectively from the claimant's viewpoint, regardless of the harasser's intent. The claimant must actually be aware of the unwanted conduct to perceive their dignity violated or an adverse environment created. However, conduct that the claimant was unaware of (e.g., derogatory remarks made behind their back) could still be harassment if it had the purpose of creating a humiliating or offensive environment.

Relevant Circumstances

Factors considered include the environment of the conduct, the claimant's personal circumstances (health, mental capacity, cultural norms, previous harassment experience), the harasser's position of power, the race/cultural background of those involved, and whether the harasser was exercising ECHR rights like freedom of expression or academic freedom. The tribunal must identify a clear link between the factual matrix and the conclusion that conduct is "related to" a protected characteristic, and this does not extend to actions of third parties for whom the respondent is not vicariously liable.

Reasonableness of Effect

This is an objective test. Conduct will only be harassment if it was reasonable for it to have the proscribed effect on the claimant. This balances the claimant's subjective perception with an objective assessment, avoiding a "culture of hypersensitivity". For example, a bishop applying lawful Church doctrine on same-sex marriage was not found to have harassed a gay clergyman, as it was not reasonable for the clergyman to perceive his dignity violated by the application of known, lawful rules. Similarly, disparaging statements made about a claimant during a bullying investigation were not reasonably seen as harassment, as hearing such things is inevitable in that context.

Creating an Intimidating, Hostile, Degrading, Humiliating or Offensive Environment

This "environment" is a state of affairs that can be created by a single act, but its effects must last longer. The context is crucial. Factors such as whether conduct was directed at the claimant, timing of objection, and frequency are relevant, but not necessarily determinative. Examples include downloading pornographic images in an office or a publican repeatedly misgendering a trans woman despite objections.

One-off or Single Acts of Harassment

A single act of unwanted conduct can amount to harassment if it is sufficiently serious and has an enduring effect or violates dignity in the moment.

Dismissal as an Act of Harassment

Both constructive dismissal and actual dismissal are capable of constituting "unwanted conduct" for the purpose of harassment under Section 26 Equality Act 2010, provided the repudiatory conduct leading to resignation constitutes or includes unlawful harassment related to a protected characteristic. This overturns previous EAT rulings that constructive dismissal could not be harassment.

Harassment of Employees by Colleagues

Under the Equality Act 2010, anything done by an employee in the course of their employment is also treated as done by the employer, making employers liable for harassment by their employees against colleagues, regardless of knowledge or approval. An employer has a defence if they can show they took "all reasonable steps" to prevent the discriminatory act.

Effect of Illegal Contracts on Harassment Claims

An illegal employment contract generally does not prevent an employee from pursuing a harassment claim, unless there is an inextricable link between the illegal conduct and the harassment, making them impossible to separate. For example, a worker without a valid permit who is sexually harassed could still claim harassment, as the harassment is not dependent on the illegal employment; however, if the harassment (e.g., being passed over for promotion) is entirely dependent on the existence of the illegal contract, the claim might not be heard.

Third-Party Harassment

Employer liability for third-party harassment provisions (Section 40(2)-(4) Equality Act 2010) were repealed on 1 October 2013. While the ERB proposes reintroduction, currently, an employee must show that the employer's inaction in the face of third-party harassment was "on grounds of" (or reason for) the protected characteristic to succeed in a claim against the employer. This means the focus is on the employer's motivation for their action or inaction, not the third party's harassment.

Despite the repeal, other claims might still be brought against an employer arising from third-party harassment, such as indirect discrimination, direct discrimination, claims under the Health and Safety at Work etc Act 1974, constructive unfair dismissal, or breach of the public sector equality duty.

Harassment of Third Parties by Employees

Employers should take reasonable steps to prevent their employees from harassing third parties during employment. A harassment claim could be brought against the employer as a service provider, as an employee's actions in the course of employment are treated as the employer's.

Association and Perception

The Equality Act 2010explicitly allows claims for harassment based on a victim's perceived protected characteristic or a protected characteristic of someone with whom the victim is associated. This includes harassment because of a spouse's religious beliefs or being wrongly perceived as gay. The Supreme Court has affirmed that a trans person harassed due to their perceived sex can bring a claim related to sex, even if not recognised as female under the Equality Act 2010, as the complainant does not need to possess the characteristic.

Regarding perception of disability, a claimant must still show they are disabled as defined by Section 6 Equality Act 2010, or that the protected characteristic was wrongly attributed to them, or they were harassed due to association with someone who has the characteristic.

Preventing Workplace Harassment

Preventing harassment is crucial for individuals and businesses, and also provides employers with a defence in tribunal claims. Employers should implement effective, well-communicated policies and procedures, ideally developed with worker representatives, and regularly reviewed. Policies should clearly define harassment, state that it is unlawful, outline disciplinary actions, provide multiple reporting channels (including informal and formal options), and commit to preventing victimisation. They should also address third-party harassment and offer contact details for support services.

Employers should be proactive in detecting harassment by recognising warning signs like sickness absence or performance dips, and provide various opportunities for employees to report issues, such as one-to-one meetings, exit interviews, and anonymous helplines. Staff training for all employees, including additional guidance for managers, is recommended to cover different types of harassment, reporting procedures, and complaint handling.

Settling a Harassment Claim

The majority of harassment claims settle before a tribunal hearing. NDAs and confidentiality clauses are often involved in settlements, though forthcoming legislation will restrict their use in certain harassment contexts.

Here is a detailed note on harassment, focusing on information not contained in the previously referenced source and incorporating relevant case law and principles:

Harassment: Further Detailed Considerations

Harassment is a serious form of unlawful conduct under the Equality Act 2010. Beyond the fundamental definitions, there are crucial legal nuances concerning future legislative changes, the expanded scope of who is protected, detailed aspects of liability for various parties, and specific remedies.

Future Legislative Changes Affecting Harassment

Significant reforms are proposed that will alter the landscape of employer responsibility regarding harassment. The Employment Rights Bill 2024 (ERB) aims to reintroduce employer liability for third-party harassment, meaning employers could once again be held accountable where a third party harasses an employee, and the employer fails to take all reasonable steps to prevent it. Furthermore, the ERB proposes to require employers to take all reasonable steps to prevent sexual harassment of employees. It also intends to classify reports about sexual harassment as protected disclosures. These changes highlight a move towards increased employer accountability and broader protection for employees.

In addition, forthcoming legislation will impact the use of Non-Disclosure Agreements (NDAs) in harassment cases. Section 1 of the Higher Education (Freedom of Speech) Act 2023 (HEFSA 2023) and Section 17 of the Victims and Prisoners Act 2024 (VPA 2024) will prevent the use of NDAs in certain circumstances, particularly in relation to sexual abuse, sexual harassment, or other bullying/harassment by higher education providers, and for victims of criminal conduct disclosing information to law enforcement or legal professionals. This aims to ensure greater transparency and prevent the silencing of victims.

Scope of Harassment: Who is Protected

The protection against harassment under the Equality Act 2010 extends beyond just current employees. An employer must not harass a person who has applied for employment. This means that unwanted conduct related to a protected characteristic during the recruitment process can constitute harassment. Furthermore, Section 108 Equality Act 2010 provides that former employees are protected against harassment if the conduct arises out of and is closely connected to a past employment relationship and would have been unlawful if it occurred during that relationship.

Liability for Harassment: Beyond the Employer

While employers are primarily liable for harassment committed by their employees in the course of employment, the Equality Act 2010 also addresses the liability of individual employees and those who facilitate unlawful acts.

Personal Liability of Employees and Agents

Section 110 Equality Act 2010 is critical as it deals specifically with the personal liability of employees and agents for harassment. An employee who commits an act of harassment (which is then treated as also done by the employer under Section 109) can face direct proceedings in an employment tribunal. Critically, this personal liability holds true even if the employer successfully argues that they took "all reasonable steps" to prevent the harassment and is therefore not vicariously liable under Section 109(4). The Employment Appeal Tribunal (EAT) in Baldwin v Cleves School [2024] EAT 66, affirmed this principle, holding that a tribunal has no discretion to find an employee not liable if the conditions in Section 110 Equality Act 2010 are met. An exception exists if the employee reasonably relied on a false statement by the employer that the act was not a contravention of the Equality Act 2010. Compensation can be awarded against the employer, the individual respondent, or both. If you're facing discrimination, like harassment, I can provide help.

Instructing, Causing, Inducing, or Knowingly Helping Unlawful Acts

The Equality Act 2010 makes it unlawful for a person to instruct, cause, induce, or knowingly help someone else to harass another person, or to attempt to do so (Sections 111 and 112 Equality Act 2010). For this provision to apply, the relationship between the parties must be one where discrimination, harassment, or victimisation is prohibited, such as an employment relationship. The recipient of such instructions (e.g., an employee) can bring proceedings if subjected to a detriment, and the eventual victim of the harassment can also bring proceedings against the person who instructed or caused the unlawful act. Furthermore, an employee must not knowingly help their employer to contravene the Equality Act 2010. However, they may have a defence if they reasonably relied on a statement from the employer that the act was lawful. An employer who knowingly or recklessly makes a false or misleading statement in this context commits a criminal offence.

Remedies: Enhanced Compensation for Sexual Harassment

In successful discrimination claims, tribunals can award compensation, declarations, or recommendations. Specifically concerning sexual harassment, if a tribunal finds that sexual harassment occurred and that the employer failed in their duty under Section 40A(1) Equality Act 2010 to take reasonable steps to prevent sexual harassment, it may increase the claimant's discrimination compensation by up to 25%. This provision offers an additional penalty for employers who neglect their preventative duties regarding sexual harassment.