Harassment, as defined in the Equality Act 2010 is unlawful. If you can show that you have suffered harassment in the workplace carried out by a colleague, you will be able to bring a claim against your employer.

What is the legal definition of harassment?

The legal definition of harassment is found in section 26 of the Equality Act 2010. Harassment involves subjecting individuals to unwanted conduct which is related to one or more of the relevant protected characteristics.

The said characteristics which are relevant for a harassment claim are:

• age
• disability
• gender reassignment
• race
• religion or belief
• sex
• sexual orientation

It should be noted that the person bringing the complaint does not have to have the said characteristic themselves. The phrase “related to” is very broad and will include cases where:

• the protected characteristic is possessed by someone with whom the claimant is closely associated (associative discrimination);
• the harasser mistakenly perceives the victim to possess the protected characteristic;
• in cases where the misconduct is not aimed at the claimant but they are exposed to it and it has the prohibited effect on them e.g. an employee overhears their manager making racist comments to a colleague

The misconduct must have the purpose or effect of:

• violating the victim’s dignity; or
• creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim.

This is likely to involve showing that the conduct had a significant impact on the victim. Trivial acts in the workplace causing minor upset will not satisfy the legal definition of harassment and such complaint will not stand.

Effect on the victim

In deciding whether the conduct amounted to harassment, an employment tribunal must consider:

• the perception of the victim
• the other circumstances of the case
• whether it is reasonable for the conduct to have had that impact on the victim

A victim’s claimed reaction to the unwanted conduct is unlikely to qualify if it is hypersensitive.

It is not enough for the victim simply to claim that the unwanted conduct violated their dignity or created an environment in the workplace that was intimidating, hostile, degrading, humiliating or offensive to them. The tribunal must also decide that it is reasonable for that to be the impact (taking the victim’s perception into account).

If the result of the conduct is to violate the victim’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment, then the perpetrator may be liable even if they did not intend the conduct to have that effect.

Misconduct of a sexual nature

There is separate type of harassment claim which may be made where there has been unwanted conduct of a sexual nature.

This occurs where:

• The perpetrator engages in misconduct of a sexual nature
• That conduct is unwelcomed by the victim
• Said sexual misconduct has the purpose or effect of violating the victim’s dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim.

It should be noted that this type of harassment does not need to be “related to” any of the protected characteristics. The crucial point is that the conduct is sexual in nature – this alone is enough to found a complaint of harassment.

Examples of this type of harassment include inappropriate physical contact, sexually suggestive remarks and sexually indecent acts in the workplace.

Rejection of, or submission to, harassing conduct

The third type of harassment protection prevents less favourable treatment of an individual, because they rejected or submitted to conduct of a sexual nature or misconduct relating to either sex or gender reassignment.

For example, if a female employee is subject to a poor performance review as a result of consistently rebuffing a manager’s sexual advances, this would be considered as harassment at the hands of her employer.

Employment tribunal claims

A claim for harassment against an employer and, if appropriate, the employee who actually carried out the unwelcome conduct can be brought in the employment tribunal.

Although an employer is vicariously liable for the actions of their employees and agents for acts of harassment, they are no longer, on the face of it, liable for harassment by third parties such as customers or other visitors.

An employer will have a defence against a claim of harassment by one of its employees if they can show that they took all reasonable steps to prevent the harassment or misconduct.

Claims can be brought in the employment tribunal without paying any fee.

There is no minimum amount of service required before a claim can be brought i.e. an employee who suffered harassment on their first day of employment could bring a claim.

Neither is there any need for an employee to resign before they bring a claim – they may bring a claim against their employer and remain in employment. In this scenario, they will be protected from victimisation in the workplace.

Compensation as a result of a workplace harassment claim

An employee who was successful in their harassment complaint against an employer would be able to recover compensation. There is theoretically no limit on how much a tribunal can award in such cases. However, in cases where there is no economic loss e.g. where the employee is still employed, any award will be limited to injury to feelings.

Tribunals must follow the so-called Vento guidelines in making such awards. Under the Vento guidelines compensation is awarded depending upon the seriousness of the case and currently ranges from £900 to £44,000.

For further information on harassment and discrimination in the workplace, please see our previous article on compensation guideline updates.