Harassment and victimisation are two separate things in the Equality Act 2010. Both can make working life miserable, and both are unlawful.
Harassment (section 26)
Harassment is unwanted conduct related to a protected characteristic, which has the purpose or effect of:
- violating a person's dignity, or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Key points:
- "Unwanted" means the person did not invite or welcome it. They do not have to say "stop" first.
- The conduct can be words, jokes, emails, messages, pictures, gestures, or behaviour. It can happen in person, in writing or online.
- Purpose or effect. The person doing it may not mean to hurt anyone. What counts is the effect. A tribunal also asks whether it is reasonable for the conduct to have that effect, looking at the person's view and the circumstances.
- It does not have to be aimed at the person. Overhearing racist jokes can create a hostile environment for a colleague.
- It can be related to a characteristic the person does not have, for instance when someone uses homophobic language about a colleague who is not gay.
For employees, the characteristics covered by harassment are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. Pregnancy and maternity, and marriage and civil partnership, are not covered by the harassment rules. Unfair treatment on those grounds is dealt with as discrimination instead (for pregnancy, under section 18).
Sexual harassment
The Act describes two further kinds of harassment:
- Sexual harassment is unwanted conduct of a sexual nature with that same purpose or effect. Examples are sexual comments, touching, jokes, showing explicit images and unwanted messages.
- Less favourable treatment because a person rejects or puts up with sexual harassment. For example, a person is given worse shifts after refusing a manager's advances.
Banter is not a defence
"It was only a joke" does not make conduct lawful. What matters is how it affects the person and whether it was unwanted. Be careful with jokes about anyone's age, race, religion, body, sex life or disability, and with group chats and social media.
Where it happens
Harassment is not limited to the office. It can happen at work events, on business trips, at social gatherings linked to work, and online. Employers can be responsible for what happens in these settings.
Victimisation (section 27)
Victimisation is when someone is treated badly (subjected to a detriment) because they have done, or may do, a protected act, or because someone believes they have.
A protected act includes:
- bringing a claim under the Equality Act;
- giving evidence or information in someone else's case;
- doing anything else in connection with the Act, such as raising a complaint;
- making an allegation that someone has breached the Act.
An allegation made in bad faith and known to be false is not protected.
Examples of victimisation: moving a worker to worse shifts after she complained of sexism, or leaving a colleague out because he supported a harassment complaint. A person does not need a protected characteristic to be victimised. They only need to have done a protected act.
What to do if you see or suffer it
- Say what is happening, if it is safe, or ask the person to stop.
- Keep notes: dates, times, what was said, who saw it.
- Use your workplace reporting route. See the last lesson.
- Do not retaliate. If you are punished for raising a concern in good faith, that can be victimisation.
What to remember
Harassment is about effect, not only intention. Victimisation protects people who speak up.