Harassment

What is harassment?

Harassment is a form of discrimination which is unlawful under the Equality Act 2010.

Harassment may amount to discrimination if it relates to a ‘relevant protected characteristic’ under the Equality Act namely:

• Sex;
• Gender reassignment;
• Race (including colour, nationality and ethnic/national origins);
• Sexual orientation;
• Disability; or
• Age.

Harassment takes place when, on one of these grounds, an individual engages in unwanted conduct, which has the ‘purpose or effect’ of ‘violating [a person’s] dignity’ or ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’ for them. Harassment also occurs when unwanted conduct of a sexual nature takes place.

A ‘one-off’ incident can amount to harassment, and it is not necessary for the recipient to let the perpetrator know that the conduct is ‘unwanted’ before a complaint is made.

Harassment can be physical, verbal or non-verbal and a wide range of different types of behaviour at work might potentially constitute harassment. Examples include unwanted remarks, banter or jokes, isolating or excluding someone, or using outdated or insulting terminology.

It is important to note that, even if the ‘purpose’ to cause harm is missing, the definition is still met if the behaviour has that ‘effect’ on the recipient. The ‘effect’ is largely assessed from the recipient’s subjective viewpoint. However, an employment tribunal will carry out an objective balancing exercise, to ‘sense-check’ that the recipient’s perceptions and reactions are not clearly unreasonable. To that extent, the intentions of the perpetrator are largely irrelevant.

Harassment by ‘association’ and ‘perception’

An employee may complain of harassment even if the unwanted conduct is not targeted at them. For example, an employee may be upset by offensive sexist or racist jokes they have overheard in the workplace, even if they did not play an active part in the exchange.

Further, it is important to note that an employee does not need to actually possess the relevant protected characteristic. An employee may allege unlawful harassment if they have experienced:

• Harassment because they associate (for example, are related to) someone who possesses a relevant protected characteristic (known as ‘associative discrimination’ or ‘discrimination by association’) or
• Harassment on the grounds of a mistaken perception that they possess a relevant characteristic (known as ‘perceptive discrimination’ or ‘discrimination by perception’).

For example, an employee could complain of harassment where behaviour relates to the fact they have a gay family member (harassment by ‘association’) or are wrongly perceived to be gay themselves (harassment by ‘perception’).