Harassment 



Harassment “related to” a protected characteristic is unlawful under the EA 10. The term “harassment” is often used loosely in a work setting, to describe unpleasant or bullying behaviour, but in the context of the EA 10, the word has a specific meaning. As with direct discrimination, the definition of harassment under the EA 10 is wide enough to cover both associative and perceptive harassment (see page 245). 



Section 26(1) of the EA 10 defines harassment as unwanted conduct with the purpose or effect of:



• violating the employee’s dignity; or



• creating an intimidating, hostile, degrading, humiliating or offensive environment for that employee.



The unwanted conduct must be related to age, disability, gender reassignment, race, religion or belief, sex or sexual orientation. Marriage and civil partnership, pregnancy and maternity are not included in this list.



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.



Unwanted conduct can only be harassment if the individual knows it is taking place. For example, placing someone under surveillance was not harassment in Peninsula Business Services v Baker [2017] UKEAT/0241/16/RN because the claimant did not know it was happening at the time. Although not harassment, these actions could amount to victimisation if they are done because someone complained of discrimination (see page 247).


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 target of the harassment to decide whether conduct is offensive, but their subjective assessment is qualified by section 26(4), EA 10 which states 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. Here are some examples:



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



Conduct that is regarded as inoffensive by most workers is likely to become harassment of a particular worker if the behaviour continues after the target has told their harasser that they object (Reed and Bull Information Systems v Stedman [1999] IRLR 299). Raising an early grievance or objection can be 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. In some cases, Acas mediation may also offer a way forward. There is information about mediation on the Acas website (www.acas.org.uk/index.aspx?articleid=1680). 



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 their 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 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 still 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”.