Creating a safe, respectful and inclusive workplace for your staff is not only crucial for employee well-being, but it is also essential for legal compliance. In the UK, employers must prevent and address workplace harassment effectively. In this guide, we explain the law surrounding workplace harassment and give you practical steps to help ensure your workplace is as safe as possible.

What Constitutes to Harassment in the Workplace?

Harassment is one of the four forms of discrimination at work that are outlawed by the Equality Act 2010. As per the legal provisions, it is characterised as unwelcome behaviour with the intention or impact of infringing upon an individual’s dignity and/or establishing an environment that is intimidating, hostile, degrading, humiliating, or offensive for that individual.

The person being harassed might feel disrespected, humiliated, insulted, intimidated or threatened. There is no need for a pattern of continuing unwanted behaviour for it to amount to harassment; isolated incidents might be considered harassment if the action is particularly demeaning or humiliating to the recipient. Harassment can take many forms – it can be verbal or non-verbal and does not need to happen face-to-face.

It does not matter whether the unwanted conduct was not intended to cause offence. What is important is that the person being subjected to it takes it that way and if, based on the particular circumstances of the case, it was reasonable for them to be offended.

Harassment Related to Protected Characteristics

Unwanted conduct is only unlawful under the Equality Act 2010 if it is because of someone’s age, disability, race, gender reassignment, religion or belief, sex or sexual orientation. So, for example, if a person at work is subjected to racist, sexist or homophobic remarks, it could amount to harassment under the equality legislation.

Marriage and civil partnership and pregnancy and maternity do not fall under ‘protected characteristics’ for purposes of harassment. Nevertheless, unwanted conduct related to these matters could amount to sex or sexual orientation harassment.

Any unwanted behaviour which impacts the dignity of individuals or groups in the workplace may constitute harassment, and as such, should never be permitted or accepted.

Lastly, the law on harassment related to some protected characteristics applies when someone is harassed on account of a relevant protected characteristic, but also when:

• someone is harassed because they are thought to have a certain protected characteristic when they do not. For example, thinking someone is gay and making derogatory homophobic comments about them because of it, even if they are not gay, can still constitute harassment.
• someone is harassed because they have a connection with someone who has a certain protected characteristic. For example, if someone is harassed because they have a disabled spouse or child.
• someone witnesses harassment, if what they have seen has violated their dignity or created an intimidating, hostile, degrading or offensive working environment for them. For example, when a person hears colleagues making offensive racist jokes even if it is not directed at them.

Examples of Harassment

Examples of harassment in the workplace may include:

• asking very personal or intrusive questions, for example, about someone’s disability or religion
• inappropriate content or tone of an email or comments on social media or other digital communication that someone finds offensive
• gossip or spreading malicious rumours.
• derogatory homophobic comments being made about someone
• put up posters that make someone feel uncomfortable
• constant criticism or deliberately undermining someone
• making threats about job security without justification
• exclusion from work-related social activities

Sexual Harassment

The Equality Act 2010 also provides separate protection against sexual harassment at work, which is unwanted behaviour of a sexual nature. A one-off act of harassment is sufficient; there does not need to be repeated behaviour or a pattern of behaviour. This type of harassment does not need to relate to a protected characteristic.

Examples of sexual harassment may include;

• flirting, gesturing or making sexual remarks about someone’s body or appearance
• telling sexually offensive jokes
• displaying or sharing pornographic or sexual images
• touching someone against their will, e.g. hugging them

Even if banter or jokes are considered to be part of a workplace’s culture, it can still be sexual harassment if the behaviour is of a sexual nature, is ‘unwanted and violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them’.

The Worker Protection (Amendment of Equality Act 2010) Bill 2023, which recently received royal assent, has introduced a new legal duty on employers that requires them to take reasonable steps to prevent sexual harassment of their employees while at work. This duty will come into force in October 2024. You can read more about this new duty in our news article here (provide link to news article on new duty on employers relating to sexual harassment).

Who Does the Law Protect?

At work, the law protects employees, workers, contractors and self-employed people hired to personally do the work against all types of harassment. It also protects job applicants and in some circumstances, the law will also protect individuals from harassment after the working relationship has ended, for example, in connection with the provision of a reference.

However, volunteers, illegal workers, and genuinely self-employed people will not be covered.

Making a Claim for Harassment

Harassment in the workplace, even if unintentional, can have very serious and costly consequences for employers. In most cases, the worker will make an informal complaint or formal grievance in the first instance. However, an employer could also find themselves facing a claim for unlawful discrimination before a tribunal.

It is worth noting that an employer can be found accountable not only for its own discriminatory conduct but also vicariously liable for any unlawful conduct of its employees. According to the anti-discrimination legislation, anything that is done by another person in the course of their employment should be treated as if done by the employer.

Protection from Third Party Harassment

There is no express protection from third-party harassment, such as customers or staff from other companies, in the equality legislation. However, other legal duties and good practices indicate that employers should adopt measures to protect employees from third-party harassment where possible.

Other Forms of Harassment

Harassment that is entirely unrelated to a protected characteristic is not covered by the Equality Act 2010. However, employers do have a legal duty under the Health and Safety at Work Act 1974 to ensure the health, safety and welfare of their employees. This responsibility encompasses safeguarding individuals from workplace bullying and harassment.

Additionally, each employment contract implies a term of mutual trust and confidence. Failure by an employer to address incidents of bullying or harassment may constitute a violation of this term, resulting in a breach of contract. Consequently, an employee experiencing workplace harassment without adequate support after filing a complaint may have grounds to resign and pursue a constructive dismissal claim against their employer, as stipulated by the Employment Rights Act 1996.

The Trade Union and Labour Relations (Consolidation) Act 1992 also makes it unlawful to harass someone at work based on their membership or non-membership of a trade union.

Practical Steps to Prevent Harassment

It is important that all businesses, including smaller ones, build inclusive cultures in the workplace, where all staff are treated with dignity and respect and where harassment and unfair treatment are known to be unacceptable.

While employers are also responsible for their staff who harass other employees, they can escape such liability if they can demonstrate that they took reasonable practical steps to prevent the harassment from happening.

Below are some of the measures an employer can put in place to help reduce the risk of harassment;

• make it clear to employees that the company has a zero-tolerance policy for unacceptable behaviour and is committed to promoting dignity and respect at work and work-related events such as work Christmas parties.
• putting written anti-harassment and ideally separate sexual harassment policies in place that set out the employer’s stance concerning harassment at work. This policy should clearly describe what amounts to harassment and should inform employees of what is viewed as acceptable conduct and what is expected of them when at work. It should also give examples of harassment and set out the procedure for dealing with any complaints or allegations of discriminatory conduct.
• Establish clear reporting lines so that employees know how to report any unacceptable behaviour in the workplace
• Complete risk assessments, especially in relation to sexual harassment in respect of workplace roles and circumstances, and where appropriate, put specific protective measures to manage those risks
• Respond to and investigate harassment complaints promptly and effectively
• Provide training to managers and senior leaders on how to deal with complaints of harassment and how to recognise the signs to prevent it.

We can assist employers in drafting robust policies and provide training and guidance on the process of addressing workplace harassment. Contact our expert employment team via email for more information or advice.

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