Conduct capable of being harassment under the EA 10

Harassment can take many forms, for example, abusive language, name-calling, offensive screen savers, jokes, offensive emails, texts, cruel or offensive postings on social media sites.

Many unions have produced online guides and practical toolkits to help reps tackle workplace harassment. There is also practical guidance in the LRD booklet, Bullying and harassment at work — a guide for trade union reps.

It is up to the victim of harassment to decide whether conduct is offensive, but section 26(4) of the EA 10 confirms that conduct will not be harassment if, taking account of the surrounding circumstances, the perpetrator could not reasonably be expected to appreciate that the employee would find it offensive. For example:

“Trivial” allegations are not protected. Context and seriousness are important when considering allegations of harassment. This is especially true of allegations of harassment based on a single act (GMB v Henderson [2015] UKEAT 0073/ 14/DM). The seriousness of the statutory words — “intimidating, hostile or humiliating” — is supposed to prevent “minor upsets” being included (Land Registry v Grant [2011] ICR 390).

Conduct regarded as inoffensive by most workers is likely to be harassment of a particular worker once they have told the harasser they object (Reed and Bull Information Systems v Stedman [1999] IRLR 299).

Raising an early grievance or objection is sensible as it helps to show that the conduct is unwanted. If several members experience harassment, it is often sensible to consider a collective grievance. For more advice see the LRD booklet Disciplinary and grievance procedures — a practical guide for union reps. In some cases, Acas mediation may offer a way forward (see page 427).

The EHRC Code of Practice says “unwanted” means the same as “unwelcome” or “uninvited”. A serious “one-off” incident can be harassment (Insitu Cleaning v Heads [1995] IRLR 4).

It is harassment to “out” a gay worker against his or her wishes, or to refer to somebody’s sexuality in a derogatory or humiliating way (Grant v Land Registry [2011] EWCA Civ 769).

The fact that a harasser was not motivated by a desire to create a hostile and degrading environment will not stop that conduct being harassment if that is its effect on the victim. For example a group of workers may think they are engaging in harmless, “laddish” behaviour by displaying “page three” pin-ups on the walls or using crude screensavers, but this can be harassment if that is its effect on the individual forced to work in that environment.

However, motive can be very important. The same remark can have a very different impact if it was innocently intended — for example, by someone trying to be helpful, as opposed to when it was intended to hurt somebody (Richmond Pharmacology v Dhaliwal [2009] IRLR 336).

It is harder to win a harassment case where there is evidence that the worker voluntarily took part in the activities. However, just because a worker is prepared to accept a level of banter from one co-worker, it does not prevent them arguing that the same language, when used by another employee, is “unwanted”.