Harassment under the Equality Act 2010

Under the Equality Act 2010, harassment occurs where, for a reason related to one of the “protected characteristics”, an employer subjects a worker to unwanted conduct which has the “purpose or effect” of “violating the worker’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment” for him or her. In other words “harassment” is unwanted, upsetting and offensive behaviour relating to one of the characteristics.

It can include spoken or written words, images, graffiti, posters, pranks, jokes, so-called “cyber-bullying”, gestures, facial expressions and mimicry. The conduct must be “unwanted”, in the sense of “unwelcome or uninvited”, but conduct can still be “unwanted”, even though the victim has not expressly communicated to the harasser that s/he objects to the behaviour.

It is up to the victim to decide whether conduct is offensive. Although conduct will not amount to harassment if 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 s/he has told the harasser that s/he objects, (Reed and Bull Information Systems v Stedman [1999] IRLR 299). A serious “one-off” incident can also be harassment (Insitu Cleaning v Heads [1995] IRLR4).

The fact that a harasser does not intend to create a hostile and degrading environment is irrelevant 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 this is its effect on the individual forced to work in that environment.

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”.