The definition of harassment is set out in s26 of the Equality Act 2010.
Some relevant causes of action
s.40 – harassment of employees and job applicants (which may include dismissal (Urso v DWP UKEAT/0045/16)).
s.40A since October 2024 – employer duty to take reasonable steps to prevent sexual harassment of employees in the course of their employment
Who should the respondent(s) be? Any particular defences?
s.109(1) and (3) – an employer is vicariously liable for harassment by employees in the course of their employment, irrespective of any knowledge or approval of the employer
s109(4) – an employer has a defence to vicarious liability if it took all reasonable steps to prevent the employee from committing harassment
s110(1) – employees can be liable for harassment of colleagues
So far as s.26(1) harassment is concerned, A harasses B if A:
- engages in unwanted conduct
- related to a relevant protected characteristic (a connection without requiring a direct causal link) and
- the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, offensive etc environment for B, and
- in “effect” (not “purpose”) cases, it is reasonable for the conduct to have that effect.
Unwanted conduct is assessed subjectively from the employee’s point of view. It is not necessary for there to be a prior rejection or complaint of the conduct. There is no requirement that the claimant should possess the protected characteristic (English v Sanderson Blinds [2008] IRLR 342).
But in “effect” cases, there is an objective element too. The conduct must reasonably be considered to have violated the victim’s dignity or created the offensive (etc) environment.(Ahmed v Cardinal Hume Academies UKEAT/0196/18)
It can be more difficult for active participants in “banter” to argue that the offending comments were unwanted or had the proscribed effect.
The claimant must have been aware of the conduct at the relevant time (Greasley-Adams v Royal Mail Group Ltd [2023] EAT 86)
Pemberton v Inwood [2018] EWCA Civ 564 contained important guidance from Underhill LJ:
“In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both … whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) … and …whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect.
The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so.”
Associative and perceptive harassment
The language of section 26 is sufficiently wide to prohibit associative harassment, where someone who does not have a protected characteristic is harassed in relation to someone else’s protected characteristic, and perceptive harassment, where someone is wrongly thought to possess a protected characteristic.
Compensation
As loss of earnings for harassment is uncapped, compensation can be very substantial in rare cases. In Lokhova (2015), a tribunal awarded an employee well over £3 million for end of career losses to a claimant who earned £750K a year until she was sexually harassed.
Duty to take reasonable steps to prevent sexual harassment by third parties
The new section 40A (since October 2024) now requires employers to take reasonable steps to prevent sexual harassment of employee by third parties (for example customers in retail and catering). This is a positive legal duty to take reasonable steps and whether an employer has done so will be an objective test.
The EHRC provides a step-by-step guide to employers on preventing sexual harassment at work.
