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 2010 and also the Public Sector Equality Duty. There is also up-to-date practical guidance in the LRD booklet, Bullying and harassment at work — a guide for trade union reps (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1630).

It is up to the victim of harassment to decide whether conduct is offensive. However, 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.

For example, in Heafield v Times Newspapers Limited [2013] UKEATPA/1305/12/BA, a stressed sub-editor was not guilty of harassment when he shouted across a crowded newsroom: “What’s happening to the f**king Pope” about a late item of copy concerning the Pope’s visit to England. The EAT said that a Catholic sub-editor who heard the comment was unreasonable in finding the working environment adverse.

Conduct regarded as inoffensive by most workers is likely to become harassment of a particular worker once they have told the harasser that 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. Where several members report experiencing harassment, think about a collective grievance. For more advice see the LRD booklet Disciplinary and grievance procedures — a practical guide for union reps. Bear in mind, also, the availability of Acas mediation to help try to resolve inter-personal disputes. There is more information as to the sorts of dispute likely to be suited to mediation on the Acas website.

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.

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”.