Harassment at Work Under Equality Act 2010

Harassment at work is unlawful in England and Wales under the Equality Act 2010. It covers unwanted behaviour linked to protected characteristics such as age, disability, sex, race, religion or belief, sexual orientation, and gender reassignment. The law applies to recruitment, employment terms, promotion decisions, workplace conduct, and dismissal.

Harassment claims are frequently brought before Employment Tribunals, particularly where workplace behaviour creates an intimidating or hostile environment. The legal focus is on the nature, context, and impact of the conduct rather than the employer's intention.

Legal Definition of Harassment

The statutory definition is set out in section 26 of the Equality Act 2010.

Harassment occurs where a person engages in unwanted conduct related to a relevant protected characteristic and the conduct has the purpose or effect of:

• violating a person's dignity, or
• creating an intimidating, hostile, degrading, humiliating, or offensive environment.

The Employment Tribunal assesses both subjective and objective factors when determining whether harassment has occurred. This includes how the claimant experienced the conduct and whether it was reasonable for it to have that effect.

Importantly, harassment does not require a comparator, unlike direct discrimination, and intention is not required for liability.

Types of Harassment Under the Equality Act 2010

The law recognises three main forms of harassment in the employment context:

1. Harassment related to a protected characteristic

This involves unwanted conduct linked to characteristics such as race, sex, disability, or age. Examples include derogatory comments, exclusion, or offensive jokes related to a protected trait.

2. Sexual harassment

This is unwanted conduct of a sexual nature. It may include verbal remarks, physical behaviour, or inappropriate communications. It can also include situations where submission to such conduct is linked to employment decisions.

3. Harassment related to rejection or submission

This occurs where a person is treated less favourably because they rejected or submitted to unwanted sexual conduct or conduct related to sex or gender reassignment.

These categories are distinct but often overlap in workplace claims brought before tribunals.

What Counts as “Unwanted Conduct”

Unwanted conduct can take many forms, including:

• Verbal comments or jokes
• Written messages or emails
• Physical gestures or contact
• Visual materials such as images or posters
• Workplace exclusion or isolation
• Repeated criticism linked to a protected characteristic

A single serious incident may be sufficient if its impact is significant, particularly where it affects dignity or creates a hostile environment.

Purpose or Effect Test

Tribunals apply a structured test to determine whether harassment has occurred:

The conduct must have:

• The purpose of violating dignity or creating a hostile environment, or
• The effect of doing so

Where assessing effect, tribunals consider:

• The claimant's perception
• The wider context of the conduct
• Whether it was reasonable for the conduct to have that effect

This ensures the test is not purely subjective but balanced with an objective legal standard.

Protected Characteristics Covered

Harassment protection applies to:

• Age
• Disability
• Gender reassignment
• Race
• Sex
• Religion or belief
• Sexual orientation

Pregnancy and maternity are not directly listed under harassment provisions but are typically protected through sex discrimination principles.

Marriage and civil partnership are excluded from harassment protection under the Equality Act framework.

Harassment in the Workplace Context

In employment settings, harassment may arise in:

• Recruitment and interviews
• Day-to-day workplace interactions
• Management decisions
• Disciplinary processes
• Workplace social environments

Employers may be held legally responsible for harassment committed by employees if it occurs in the course of employment, subject to the statutory defence of having taken reasonable steps to prevent it.

Relationship Between Harassment, Bullying, and Discrimination

Harassment is often confused with bullying. The key legal distinction is:

• Harassment (legal concept): linked to protected characteristics and unlawful under the Equality Act 2010
• Bullying (workplace concept): general inappropriate behaviour, not always unlawful unless linked to protected grounds

Not all bullying is harassment, but harassment may also constitute bullying in practice.

Burden of Proof in Harassment Claims

In Employment Tribunal proceedings:

1. The claimant must establish facts suggesting harassment may have occurred.
2. The burden shifts to the employer to provide an explanation or justification.

Tribunals assess all evidence holistically, including documents, witness accounts, and patterns of behaviour.

Time Limits for Harassment Claims

Claims must usually be brought within:

• 3 months minus 1 day from the last act of harassment

Where harassment forms part of a continuing course of conduct, time may run from the final incident in the series. ACAS Early Conciliation pauses the limitation period.

Remedies and Compensation

Where harassment is proven, an Employment Tribunal may award:

1. Injury to feelings compensation

Assessed using the Vento bands, which categorise awards based on seriousness:

• Lower band: isolated or less serious incidents
• Middle band: more serious or repeated conduct
• Upper band: severe or prolonged harassment

2. Financial loss

Including loss of earnings if dismissal or resignation resulted from harassment.

3. Additional damages

In cases involving psychiatric injury, separate awards may apply where supported by medical evidence.

4. Recommendations

Tribunals may require employers to change workplace practices.

Employer Liability

Employers may be legally responsible for harassment carried out by employees unless they can demonstrate that:

• They took reasonable steps to prevent harassment
• They had effective policies and training in place

This is known as the statutory defence under the Equality Act 2010.

Common Examples in Tribunal Cases

Typical harassment scenarios include:

• Repeated sexist or racist remarks
• Disability-related mockery or exclusion
• Offensive sexual comments or behaviour
• Religious or cultural ridicule
• Persistent intimidation linked to a protected trait

The severity and frequency of conduct significantly influence tribunal outcomes.

Key Takeaways

Harassment at work under the Equality Act 2010 involves unwanted conduct linked to a protected characteristic that violates dignity or creates a hostile environment. It can take verbal, physical, or written forms and does not require intent. Employment Tribunals assess both subjective impact and objective reasonableness. Claims must be brought within strict time limits and may result in compensation, including injury to feelings awards under the Vento guidelines. Employers may be liable for workplace harassment unless they can show reasonable preventative steps were taken.