What sort of conduct could amount to harassment under the EA 10?

It could 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 updated online guides and practical toolkits on the Equality Act and also the Public Sector Equality Duty. There is also up-to-date practical guidance in the LRD Booklet, Bullying and Harassment — a guide for trade union reps, (£7.20).

It is up to the victim of harassment to decide whether conduct is offensive, although section 26(4) of the EA 10 confirms that conduct will not amount to harassment if, taking account of the surrounding circumstances, the perpetrator could not reasonably be expected to appreciate that the employee would find it offensive. Conduct regarded as inoffensive by most workers is likely to become harassment of a particular worker once he or she has told the harasser that he or she objects (Reed and Bull Information Systems v Stedman [1999] IRLR 299). Raising an early grievance or objection to harassment is sensible, as it helps to show that the conduct is unwanted. The EHRC Code of Practice says that “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 does not intend to create a hostile and degrading environment will not stop that conduct being harassment if that is the effect it has 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, there are limits, as the following case demonstrates, to protect the employer against unreasonable or over-sensitive employees:

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”.