Sexual harassment and harassment at work: technical guidance

Who is this guidance for?

• employers
• workers
• their representatives

What this guidance covers

This guidance covers sexual harassment, harassment and victimisation in employment under the work provisions in the Equality Act 2010 (‘the Act’). The work provisions are based on the principle that workers should not be harassed, discriminated or victimised at work (Part 5 of the Act).

This guidance also covers an employer’s positive legal duty to take reasonable steps to prevent sexual harassment of its workers (the ‘preventative duty’).

This guidance will:

• help employers to understand their legal responsibilities in relation to harassment and victimisation, the steps they should take to prevent harassment and victimisation at work and what they should do if harassment or victimisation occurs
• help employers to understand their positive legal obligations in relation to the preventative duty, the steps they must take to prevent sexual harassment at work and what they should do if harassment occurs  
• help workers to understand the law and what their employer should do to prevent harassment and victimisation, or to respond to their complaint of harassment or victimisation
• help lawyers and other advisers to advise workers and employers about these issues
• give employment tribunals and courts clear guidance on the law on harassment and victimisation, the legal scope of the preventative duty and best practice on the steps that employers could take to prevent and deal with harassment and victimisation
• use examples to illustrate some of the practical steps employers of different sizes and types can take to eliminate harassment in the workplace

In this guide, we use the following terms:

Introduction

In any workforce there will be a range of attitudes about what conduct is considered to be offensive, humiliating, intimidating, hostile, or degrading. What one worker – or even a majority of workers – might see as harmless fun or ‘banter’, another may find unacceptable. A worker complaining about conduct may be considered by others to be overly sensitive or prudish. However, it is important to understand that conduct can amount to harassment or sexual harassment even if that is not how it was intended. This chapter explains what types of behaviour amount to harassment under the Act. These include harassment related to a relevant protected characteristic, sexual harassment, and less favourable treatment for rejecting or submitting to harassment. No form of harassment can ever be justified.

Unlike direct discrimination, harassment does not take a comparative approach. That is, it is not necessary for the worker to show that another person without the protected characteristic was, or would have been, treated more favourably. For an explanation of direct discrimination, read Chapter 4 of the Employment Statutory Code of Practice.

1.3 Unlike other forms of discrimination, pregnancy and maternity and marriage and civil partnership are not protected under the harassment provisions. However, harassing someone because of pregnancy or maternity would be harassment related to sex.

1.4 It is unlawful for an employer to harass a worker, or anyone who has applied to them for employment (s.40).

1.5 It is also unlawful if an employer fails to take reasonable steps to prevent sexual harassment of workers (s.40A(1)).

1.6 This type of harassment arises when a worker is subject to unwanted conduct that is related to a protected characteristic and has the purpose or the effect of:

• violating the worker’s dignity, or
• creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker (s.26 (1))

1.7 Conduct that has one of these effects can be harassment even if the effect was not intended.

Meaning of ‘unwanted conduct’

1.8 Unwanted conduct covers a wide range of behaviour. It can include:

• spoken words
• written words
• banter
• posts or contact on social media
• imagery
• graffiti
• physical gestures
• facial expressions
• mimicry
• jokes or pranks
• acts affecting a person’s surroundings
• aggression
• physical behaviour towards a person or their property

1.9 The word ‘unwanted’ means essentially the same as ‘unwelcome’ or ‘uninvited’.

1.10 Unwanted means ‘unwanted by the worker’ and should be considered from the worker’s subjective point of view. However, external factors may be considered by a tribunal or court in deciding whether it accepts that, subjectively, the conduct was unwanted.

1.11 It is not necessary for the worker to say that they object to the conduct for it to be unwanted. However, in deciding whether a claimant has established that the conduct was unwanted, a tribunal or court may take into account whether or not the worker objected to the conduct, among other things.

1.12 In some cases, it will be obvious that conduct is unwanted because it would plainly violate a person’s dignity.

1.13 At the opposite end of the spectrum are cases in which many people would not like the behaviour, but the actions of the particular worker concerned make it clear that in their case, the conduct was not unwanted.

1.14 There may be circumstances in which a course of conduct is not unwanted in the earlier stages, but at some point 'oversteps the mark' and becomes unwanted.

Meaning of 'related to'

1.15 Unwanted conduct ‘related to’ a protected characteristic has a broad meaning. The conduct does not have to be because of the protected characteristic. It includes the following situations:

a) Where conduct is related to the worker’s own protected characteristic

1.16 Protection from harassment also applies where a person is generally offensive to other workers but, in relation to a particular worker, the conduct is unwanted because of that worker's protected characteristic.

b) When there is any connection with a protected characteristic

Workers are also protected where the unwanted conduct is connected to a protected characteristic, even if the worker does not have the relevant protected characteristic. This includes where the employer knows that the worker does not have the relevant characteristic. Connection with a protected characteristic may arise in several situations:

The worker may be associated with someone who has a protected characteristic.

The harasser may wrongly believe the worker to have a particular protected characteristic.

The worker is known not to have the protected characteristic but nevertheless is subjected to harassment related to that characteristic.

The unwanted conduct related to a protected characteristic is not directed at the particular worker, but at another person or no one in particular.

The unwanted conduct is because of something related to the protected characteristic but does not take place because of the protected characteristic itself.

1.17 In all of the circumstances listed, there is a connection between the unwanted conduct and the protected characteristic. The worker could therefore succeed in a claim of harassment if the unwanted conduct has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

1.18 However, in deciding whether conduct was related to the protected characteristic, an employment tribunal may take account of the context in which the conduct takes place.

1.19 Sexual harassment occurs when a worker is subjected to unwanted conduct as defined in paragraphs 1.8 to 1.14 and which is of a sexual nature. The conduct need not be sexually motivated, only sexual in nature (s.26(2)).

1.20 Conduct ‘of a sexual nature’ includes a wide range of behaviour, such as:

• sexual comments or jokes
• displaying sexually graphic pictures, posters or photographs
• suggestive looks, staring or leering
• propositions and sexual advances
• making promises in return for sexual favours
• sexual gestures
• intrusive questions about a person’s private or sex life or a person discussing their own sex life
• sexual posts or contact on social media
• spreading sexual rumours about a person
• sending sexually explicit emails or text messages
• unwelcome touching, hugging, massaging or kissing

1.21 An individual can experience unwanted conduct from someone of the same or a different sex.

1.22 Sexual interaction that is invited, mutual or consensual is not sexual harassment because it is not unwanted. However, sexual conduct that has been welcomed in the past can become unwanted.

1.23 The Act states that employers have a legal obligation to prevent sexual harassment of workers (s.40A(1)). For further information, read paragraphs 3.16 to 3.43.

1.24 The third type of harassment occurs when:

• a worker is subjected to unwanted conduct
  1. of a sexual nature
  2. related to sex, or
  3. related to gender reassignment
• the unwanted conduct has the purpose or effect of
  1. violating the worker’s dignity, or
  2. creating an intimidating, hostile degrading, humiliating or offensive environment for the worker, and
  3. the worker is treated less favourably because they submitted to or rejected the unwanted conduct (s.26(3))

1.25 Under this type of harassment, it may be the same person who is responsible for the initial unwanted conduct and the subsequent less favourable treatment, or it may be two (or more) different people (s.26(3)(a)).

Meaning of 'purpose' or 'effect'

1.26 For all three types of harassment, if the harasser’s purpose is to violate the worker’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment for them, this will be sufficient to establish harassment. It will not be necessary to look at the effect that conduct has had on the worker.

1.27 Unwanted conduct will also amount to harassment if it has the effect of violating the worker’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them, even if that was not the intended purpose.

• the personal circumstances of the worker experiencing the conduct (for example, the worker’s health, including mental health, mental capacity, or previous experience of harassment)
• whether the harasser is in a position of trust or seniority to the worker, or holds any other form of power over them
• the race or cultural background of those involved, for example, a particular term may be offensive to people of one race because historically it has been used as a derogatory term in relation to that race, whereas people of other races may not generally understand it to be offensive
• the environment in which the conduct takes place 
• whether the harasser was exercising any of their convention rights protected under the Human Rights Act 1998 such as freedom of expression

c) While the worker’s perception of the conduct is key to whether something amounts to sexual harassment, consideration must also be given to whether it is reasonable for the conduct to have that effect. This is an objective test. A tribunal or court is unlikely to find unwanted conduct has the effect, for example, of offending a worker, if it considers the worker to be hypersensitive and that any other reasonable person subjected to the same conduct would not have been offended (s.26(4)(c)).

1.29 Sometimes the harasser may put forward evidence to suggest that their conduct could not have had the relevant effect on the worker. Where they do so, an employer must not rely on irrelevant information about the conduct of the individual.

Introduction

2.1 It is important that employers recognise the significant role that fear of victimisation plays in relation to how they approach and deal with harassment and sexual harassment at work. This will be a key factor in their ability to fulfil their duty to prevent and protect employees from harassment. This chapter explains what the Act says about victimisation in the context of harassment at work. For consideration of victimisation in the wider context, read Chapter 9 of the Employment Statutory Code of Practice.

2.2 Victimisation means treating a worker badly (subjecting them to a detriment) because they have done a protected act- for example making a complaint of harassment (read paragraphs 2.6 to 2.15 for the full definition). Victimisation also means subjecting a worker to a detriment because it is believed they have done or are going to do a protected act. The worker does not actually need to have done the protected act (s.27(1)).

2.3 The worker does not need to compare their treatment with the treatment of another worker who has not done a protected act, and show that this comparable worker would not have been subjected to the same detrimental treatment. The worker only has to show that they have experienced detrimental treatment because they have done a protected act or because the employer believes (rightly or wrongly) that they have done or intend to do a protected act (s.27(2)(c) and (d)).

2.4 The detrimental treatment does not need to be connected to a protected characteristic. However, there does need to be a protected act (read paragraphs 2.6 to 2.15 for the definition of a protected act).

2.5 Former workers are also protected against victimisation.

What is a 'protected act'?

​​​​​2.6 Doing a protected act means:

1. making a claim or complaint under the Act (for example, for discrimination or harassment)
2. helping someone else to make a claim by giving evidence or information
3. making an allegation that someone has breached the Act, or
4. doing anything else in connection with the Act (s.27(2)(a)-(d))

2.7 This protection will apply to anyone making a claim or allegation that the Act has been breached or assisting someone (like a colleague) in doing so. It is irrelevant whether the Act was breached or not, as long as the person doing the protected act genuinely believes that the information or evidence they are giving is true.

2.8 Protected acts include claims or allegations of discrimination and harassment under both the Act and any of the legislation that the Act replaced.

2.9 As this example suggests, there is no limit on how much time may elapse between the protected act and the detriment, provided that the worker is subjected to the detriment because of the protected act and not because of some other reason.

2.10 The protected act may relate to any part of the Act, not just the employment provisions. The act of victimisation may relate to the provision of services, goods or education or the exercise of a public function, for example.

2.11 While a claim of victimisation will often be brought against the person or employer who carried out the discrimination or harassment, this will not always be the case. The behaviour which is the subject of the protected act can be committed by any person.

2.12 An act will not be a protected act where the worker gives false evidence or information or makes a false allegation in bad faith. This is a two-stage test.

2.13 First, a tribunal or court must decide whether the evidence, information, or allegation is false. This is an objective exercise that involves weighing up the evidence for and against. If a tribunal or court decides that on balance the evidence, information or allegation is more likely to be true than false, then the act is protected.

2.14 If a tribunal or court decides that the evidence, information or allegation is more likely to be false, then it must decide whether it was given or made in bad faith. The focus here is on whether the individual acted honestly or not.

2.15 If a worker has an ulterior motive for providing the evidence or information, or making the allegation, this does not necessarily mean that the worker does not honestly believe it is true. An ulterior motive will not of itself mean the worker acted in bad faith. However, it may be a relevant piece of information for a tribunal or court to consider in deciding whether the worker acted honestly. Other factors such as the length of time it took the worker to raise the matter may also be relevant.

What is a 'detriment'?

2.16 'Detriment’ is not defined by the Act and could take many forms. Generally, a detriment is being treated badly. This could include:

• being rejected for promotion
• being denied an opportunity to represent the employer at external events
• being excluded from opportunities to undertake training
• not being given a discretionary bonus or performance-related award

2.17 A detriment might also include a threat made to the complainant that they take seriously, and which is reasonable for them to take seriously. There is no need to demonstrate physical or financial consequences. However, an unjustified grievance alone would not be enough.

2.18 Detrimental treatment amounts to victimisation if a ‘protected act’ is one of the reasons for the treatment, but it need not be the only reason.

Introduction

3.1 The Act makes discrimination, harassment and victimisation in the work relationship unlawful (Part 5).

3.2 This chapter explains:

• who is protected against harassment and victimisation
• an employer’s positive legal duty to take reasonable steps to prevent sexual harassment of its workers (the ‘preventative duty’)
• whose conduct an employer may be liable for
• the grounds on which an employer may raise a defence to a claim of harassment

​​​​​​3.3 A wide range of people are protected from harassment and victimisation at work under the EA2010 (s.83).

What 'employment' means

3.13 A key issue in deciding whether someone is self-employed is often whether they provide personal service or not. That is, do they always do the work themselves and have no right to ask another person to do the work for them (a substitute). If they are required to do the work personally, they are likely to be an employee or worker. Conversely, if they have an unlimited right to use a substitute, then they are not required to provide personal service to the employer and are likely to be self-employed.

3.14 Between these two extremes there will be cases where someone has a right to appoint a substitute but on certain conditions. For example, requirements that the substitute used is from a limited group of people, that the individual gets consent from the employer before using a substitute, or that the substitute has certain qualifications. The courts have not yet provided clear guidance as to how free an individual must be for the individual to be self-employed. They have taken a case-by-case approach to whether the particular circumstances of each case indicate that personal service is required.

The effect of illegal contracts on harassment claims

3.15 The fact that a contract of employment is illegal will not normally prevent a worker pursuing their harassment claim. It will only prevent them doing so if there is an inextricable link between the conduct and the harassment (that is, the harassment is so tangled up with the illegal conduct that the two are impossible to separate). If the two things are impossible to separate, a tribunal or court may not be able to hear the claim because making an award of compensation in these circumstances would give the appearance that the tribunal or court condones the illegal conduct.

Duty on employers to prevent sexual harassment of workers

3.16 Employers have a positive legal duty to prevent sexual harassment of their workers. They must take reasonable steps to prevent sexual harassment of workers in the course of their employment (the ‘preventative duty’) (s.40A(1)).

3.17 Sexual harassment means harassment of the kind described in section 26(2) of the Act (unwanted conduct of a sexual nature) (s.40A(2)).

3.18 The preventative duty is an anticipatory duty. It is designed to transform workplace cultures by requiring employers to take positive and proactive reasonable steps to prevent sexual harassment of their workers. Employers should not wait until a complaint of sexual harassment has been raised before they take any action. The duty requires that employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place. However, if sexual harassment has taken place, the preventative duty means an employer should take action to stop sexual harassment from happening again. If an employer fails to take reasonable steps to comply with the preventative duty, there are consequences.

3.19 Firstly we (the Equality and Human Rights Commission) have the power to take enforcement action against the employer (s.40A(3)).

3.20 Secondly, if an individual succeeds in a claim for sexual harassment and is awarded compensation, an employment tribunal must consider whether the employer has complied with the preventative duty. If it considers the preventative duty has been breached, an employment tribunal can increase compensation by up to 25% (s.124A).  However, an individual cannot bring a claim for a breach of the preventative duty alone.  For further information about the consequences of failing to comply with the preventative duty read paragraphs 3.36 to 3.43.

3.21 The preventative duty only applies to sexual harassment. It does not cover harassment related to a protected characteristic (including sex), nor does it apply to less favourable treatment for rejecting or submitting to unwanted conduct. However, these types of harassment are unlawful and employers should take steps to prevent all types of harassment at work.

3.22 The preventative duty requires employers to take reasonable steps to prevent sexual harassment by their own workers. It also requires employers to take reasonable steps to prevent sexual harassment of workers by third parties, such as clients and customers. Although the preventative duty includes third party harassment, a worker cannot bring a stand alone claim in the employment tribunal for third party harassment. For further detail please read paragraphs 3.33 to 3.34 and paragraphs 3.65 to 3.86.

Sexual harassment of workers

​​​​3.23 Employers must take steps to prevent sexual harassment of workers. Sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of:

• violating a worker’s dignity, or
• creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker

It is explained in further detail in paragraphs 1.19 to 1.22.

3.24 The preventative duty only applies to sexual harassment that takes place in the course of employment. For further information about this, read paragraphs 3.47 to 3.48.

3.25 Sexual harassment of a worker can be committed by:

• another worker
• an agent acting on behalf of the employer
• a third party

3.26 The preventative duty includes prevention of sexual harassment by third parties. Therefore, if an employer does not take reasonable steps to prevent sexual harassment of their workers by third parties, the preventative duty will be breached. The consequences of breaching the preventative duty are explained further in paragraphs 3.62 to 3.68.

Reasonable steps

3.27 To comply with the preventative duty, employers must take reasonable steps to prevent sexual harassment of their workers in the course of employment.

3.28 What is reasonable will vary from employer to employer. The law does not list specific steps an employer must take. Different employers may prevent sexual harassment in different ways, but all employers must take action and no employer is exempt from the sexual harassment preventative duty.

3.29 Whether or not an employer has taken reasonable steps is an objective test and will depend on the facts and circumstances of each situation.  The examples that we have used to help explain what may be reasonable are illustrative only and do not provide a definitive list of steps an employer should take.  Every employer’s situation will be different.

3.30 An employer should:

• consider the risks of sexual harassment occurring in the course of employment
• consider what steps it could take to reduce those risks and prevent sexual harassment of their workers
• consider which of those steps it would be reasonable for it to take
• implement those reasonable steps

3.31 An employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment. Further information about risk assessments is in paragraphs 4.10 to 4.15.   

3.32 In deciding whether a step is reasonable, the factors that may be relevant include (but are not limited to):

• the size and resources of the employer
• the nature of the working environment
• the sector the employer operates in
• the risks present in that workplace
• the nature of any contact with third parties, for example,  type of third party, frequency, environment
• the likely effect of taking a particular step and whether an alternative step could be more effective
• the time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve
• whether concerns have been raised with an employer that sexual harassment has taken place (it would likely be reasonable for the employer to take steps to investigate and ensure it does not happen again)
• compliance with any relevant regulatory standards (for example, standards set by the Financial Conduct Authority or General Medical Council)
• whether steps taken appear to have been effective or ineffective,  for example, if a further incident of sexual harassment occurs after steps have taken, this may indicate that additional and / or alternative action should be considered

A step may be reasonable, even if it would not have prevented a particular act of sexual harassment.

3.33 In addition to the prevention of worker-on-worker sexual harassment, the preventative duty includes a duty to prevent sexual harassment by third parties. There are many different types of third parties that could sexually harass a worker (such as customers, clients, self employed contractors or freelancers, service users, patients, students, friends and family of colleagues, delegates at a conference and members of the public).

3.34 When carrying out a risk assessment, as explained in paragraphs 3.30 to 3.32 employers should consider the risk their workers may be sexually harassed by third parties, and take reasonable steps to prevent such harassment.

3.35 Chapter 4 provides detailed guidance on practical steps employers can take to prevent and respond to harassment, including sexual harassment. Please also read our short guide for employers on preventing sexual harassment at work.    

Our enforcement

3.36 If an employer does not comply with the preventative duty, we have the power to take enforcement action against the employer. We have enforcement powers under the Equality Act 2006 which include powers to:

• investigate an employer (s.20 Equality Act 2006)
• issue an unlawful act notice if the employer is or has been the subject of an investigation under s.20, confirming that we have found an employer has breached the Act and requiring the employer to prepare an action plan setting out how it will remedy any continuing breach of the law and prevent future breaches (s.21 and s.22 Equality Act 2006)
• enter into a formal, legally binding agreement with an employer to prevent future unlawful acts  (s.23 Equality Act 2006)
• ask the court for an injunction to restrain an employer from committing an unlawful act (s24 Equality Act 2006)

3.37 We can use one of our enforcement powers to take action if we suspect the preventative duty has not been complied with. The preventative duty does not depend upon an incident of sexual harassment taking place to be enforceable by us.

3.38 Read more about our enforcement powers here.

3.39 Workers can report a concern to us that the preventative duty has been breached. Read about how to report a concern in our guidance. Workers should consider raising their concerns with their employer or trade union before reporting a concern to us.

Increase in compensation for sexual harassment

3.40 If an employment tribunal finds that a worker has been sexually harassed and has ordered the employer to pay compensation to the worker, it must consider if and to what extent the employer has complied with the preventative duty.

3.41 If the employment tribunal is satisfied that the preventative duty has been breached, it may order the employer to pay additional compensation to the worker (‘compensation uplift’).

3.42 The amount of the compensation uplift must reflect the extent to which the employment tribunal considers the employer has not complied with the preventative duty. It must be no more than 25% of the amount of compensation awarded to the worker under the Equality Act 2010. 

3.43 Compensation for sexual harassment can include compensation for both past and future loss of earnings, injury to feelings and personal injury. For further information about compensation for discrimination claims read paragraphs 15.37 to 15.43 of the Employment Statutory Code of Practice. 

3.44 Employers are liable for acts of harassment:

• committed by one worker against another of their workers
• committed by one of their workers against a job applicant or former worker
• committed by an agent acting on their behalf against one of their workers, and
• where a failure to deal with harassment of one of their workers by a third party, or by another worker outside of employment, amounts to direct or indirect discrimination (or breach of other legal obligations) (s.40)

3.45 As set out above, a worker cannot bring a claim against their employer about a breach of the preventative duty, but an employment tribunal can increase compensation awarded in a sexual harassment claim if it is not complied with. For further information about the preventative duty read paragraphs 3.16 to 3.43. 

3.46 Employers will be liable for harassment committed by their workers in the course of their employment unless they can rely on the ‘reasonable steps’ defence (read paragraphs 3.49 to 3.58). It does not matter whether or not the employer knows about the harassment (s.109(1) and s.109(3)).

3.66 This provision was repealed. Subsequent case law stated that employers could be liable where their inaction itself violated the worker’s dignity or led to the creation of an intimidating, hostile, degrading, humiliating or offensive environment for them.

3.67 However, this changed following the case of Unite the Union v Nailard. In that case, the Court of Appeal stated that the Act does not make employers liable for failing to protect workers against third party harassment. They will only be liable if they fail to take action because of a protected characteristic (Unite the Union v Nailard [2018] EWCA Civ 1203).

3.68 The preventative duty provides workers with protection from sexual harassment by third parties. While there is no specific protection from other types of third party harassment under the Act, employers should still take reasonable steps to prevent all types of third party harassment. Harassment by a third party can be just as devastating for a worker as harassment by a fellow worker. Employers who do not take reasonable steps to prevent or respond to third party harassment may be liable under other sections of the Act or other legislation in certain circumstances as set out in the following sections of this guidance.

Third party harassment: indirect discrimination 

3.69 It is possible that inaction or a particular way of dealing with complaints of third party harassment could amount to indirect discrimination. This occurs when a provision, criterion or practice (PCP) is applied in the same way, for all workers or a group of workers, but has the effect of putting workers sharing a protected characteristic at a particular disadvantage. It does not matter that the employer did not intend to disadvantage the workers.

3.70 If a PCP is applied and puts workers sharing a characteristic at a disadvantage, then it will be unlawful unless the employer can justify it. That is, prove that they have a legitimate aim in applying the PCP, and that the PCP was a proportionate way to achieve that aim.

3.71 ‘Provision’, ‘criterion’ or ‘practice’ can include:

• workplace policies
• the way in which access to any benefit, service or facility is offered or provided
• one-off decisions, and
• directions to do something in a particular way

3.72 'Disadvantage' is a very broad term and can take many different forms. For example, the disadvantage could be not having a complaint of harassment investigated.

3.73 Indirect discrimination is covered in more detail in Chapter 4 of the Employment Statutory Code of Practice.

3.74 Indirect discrimination may also occur when an individual without the relevant protected characteristic experiences disadvantage alongside persons with the relevant protected characteristic. Provided that the discriminatory PCP puts, or would put, them at substantively the same disadvantage as people who share the relevant protected characteristic, such an individual may bring a claim for ‘same disadvantage’ indirect discrimination. Same disadvantage indirect discrimination will be unlawful unless the employer can justify the PCP as a proportionate way of achieving a legitimate aim.

3.75 Although this type of indirect discrimination is sometimes referred to ‘associative indirect discrimination’, it is not necessary for there to be any relationship or association between the group with the relevant protected characteristic and the individual who does not share it. Rather, the individual without the relevant protected characteristic must be able to show that the disadvantage they experience is essentially the same as that experienced by the group sharing the protected characteristic.    

Third party harassment: direct discrimination

3.76 An employer may also be liable for direct discrimination if it treats complaints of harassment by a worker with a protected characteristic in a less favourable way than it treats complaints by others. Direct discrimination is covered in more detail in Chapter 3 of the Employment Statutory Code of Practice.

Third party harassment: health and safety at work

3.77 The Health and Safety at Work etc. Act 1974 (HSWA) may apply where workers are subject to third party violence while carrying out their work.

3.78 Third party violence means violence caused by any person who is external to the employer such as customers, clients, patients, service users, students and members of the public. Third party violence may take the form of physical or verbal abuse with the effect of causing physical or psychological harm to the worker.

3.79 In general, for HSWA to apply, third party violence should arise out of the work activity of the employer. It occurs, for example, when the employer is providing a service (often to the public). Factors which increase the risk of third party violence may include, for example, services not meeting expectations, acting in a position of authority such as an enforcement officer, or dealing with people who have consumed alcohol or drugs.

3.80 Under the Management of Health and Safety at Work Regulations 1999, employers are required to assess risks to their workers including reasonably foreseeable risks of third party violence. Employers should identify reasonably practicable organisational measures to prevent or control risks from third party violence as appropriate. Common measures include the provision of equipment, design of the workplace, instruction or training on personal safety which may involve conflict resolution techniques as well as support arrangements. Further information on violence at work can be found in the HSE leaflet ‘Violence at work: A guide for employers’ (INDG69).

3.81 Violence by a third party against a worker is likely to amount to a criminal offence. The actions of perpetrators should therefore be dealt with in accordance with paragraphs 4.70 to 4.74.

Third party harassment: constructive unfair dismissal

3.82 A contract of employment between an employer and employee always includes certain implied terms. One of these implied terms is that an employer will not act in a way which destroys the trust and confidence between the employer and the worker. If an employer breaches this implied term, then the worker will be entitled to resign and claim that they have been constructively dismissed. A failure to take action by an employer may amount to a breach of this term. If so, such a dismissal would likely be an unfair dismissal contrary to section 94 of the Employment Rights Act 1996. For further information on constructive dismissal, read the Acas website.

Third party harassment: Public Sector Equality Duty (PSED)

3.83 Public sector employers must comply with the PSED. This means that when carrying out their functions, they must pay due regard to the need to:

1. eliminate discrimination, harassment and victimisation
2. advance equality of opportunity between people who have a protected characteristic and people who do not, and
3. foster good relations between people who share a protected characteristic and people who do not

3.84 To comply with the PSED, public sector employers must give due regard to how taking steps to prevent third party harassment may help to eliminate discrimination, harassment and victimisation, advance equality of opportunity and foster good relations. For further information on the PSED, read our PSED guidance.

Third party harassment and the preventative duty

3.85 Employers have a positive legal duty to prevent sexual harassment of their workers. They must take reasonable steps to prevent sexual harassment of workers in the course of their employment (the ‘preventative duty’). This includes sexual harassment by third parties (s.40A(1)).

3.86 Further information about the preventative duty, and the consequences of breaching it, are explained in paragraphs 3.16 to 3.43.

Harassment by a colleague outside of work

3.87 As explained in paragraphs 3.47 to 3.48, an employer will be liable for harassment by one worker against another if it took place during the course of employment. An employer will not be directly liable under the Act for harassment by one worker against another if it took place outside of the course of employment.

3.88 However, an employer should still take reasonable steps to deal with a complaint of harassment by one worker against another committed outside of the course of employment. This is because the legal principles set out in paragraphs 3.69 to 3.76 and paragraphs 3.82 to 3.84 in relation to third party harassment, could be applied equally to any failure by an employer to deal with such a complaint. That is, the employer could potentially be liable for direct or indirect discrimination, constructive dismissal or breach of the PSED.

3.89 Workers may be personally liable for acts of harassment they carry out during their employment. They will only be liable under the Act if their employer is also liable for the harassment, or if their employer would have been liable but is able to rely successfully on the ‘reasonable steps’ defence (s.110(1) and s.110(2) (read paragraphs 3.49 to 3.58).

3.90 Agents (as defined in paragraphs 3.59 to 3.61) may also be personally liable for acts of harassment committed with the employer’s authority where the employer is also liable.

3.91 If a worker or agent reasonably relies on a statement by the employer that an act is not unlawful, then the worker or agent will not be liable even if the employer is liable (s.110(3)).

Introduction

4.1 Harassment at work can have a profound, long-lasting and damaging impact on both workers and employers. It damages the mental and physical health of individuals, affecting both their personal and working life, and has a negative impact on the work environment and productivity.

4.2 But harassment is not inevitable. Employers can and must take action to change workplace behaviours and eradicate harassment in the workplace. By taking the practical steps outlined in this guidance, employers can protect their workers against harassment and transform workplace cultures.

4.3 Management and senior leaders play a critical role in creating respectful workplaces that are free from harassment.  They should role model respectful behaviour and visibly promote a positive and inclusive workplace culture where harassment is taken seriously and not tolerated.

4.4 This chapter sets out what steps can be taken to prevent harassment and protect workers, to help employers understand how best to meet their responsibilities under the Act.  An employer will be liable for harassment or victimisation committed by its workers unless they can show that they took all reasonable steps to prevent such behaviour. The relevant factors as to whether an employer has taken all reasonable steps are considered in paragraphs 3.49 to 3.58. (s.109(4)).

4.5 The guidance in this chapter also explains what employers should do to meet the sexual harassment preventative duty. Employers should carefully consider all of the guidance in this chapter when considering what reasonable steps they can take to prevent the sexual harassment of their workers (s.40A(1)).

4.6 The sexual harassment preventative duty is a positive and proactive duty designed to transform workplace cultures by requiring employers to take reasonable steps to prevent sexual harassment of their workers. Employers should not wait until an incident of sexual harassment has taken place before they take any action. Employers should anticipate scenarios when its workers may be subject to sexual harassment in the course of employment and take action to prevent such harassment taking place. If sexual harassment has taken place, the preventative duty means an employer should take action to stop sexual harassment from happening again.

4.7 As explained in Chapters 3 and 4, there is no prescribed minimum about what an employer can do to prevent harassment, including sexual harassment, and protect its workers. It is an objective test about what it is reasonable for the employer to do in the circumstances. This will vary from employer to employer depending on the size and nature of the employer, the resources available to it and the risk factors which need to be addressed within the particular employer or sector. Therefore, not every step set out in this chapter will be reasonable for every employer to take, nor should they be considered exhaustive. Employers should consider what steps they have taken to date and what further steps it is practicable for them to take.

4.8 This should not be a one-off exercise. Employers should continue to review whether there are any further steps it is practicable for them to take, considering issues such as whether there have been any changes in the workplace or the workforce and the availability of new technology such as new reporting systems.

4.9 You may also want to read our short guide for employers on preventing sexual harassment at work.   

Assessing risks relating to harassment

Anti-harassment procedure 

4.50 When an employer becomes aware that harassment is taking place or may have taken place, it is important that they deal with it promptly, efficiently and sensitively.

4.51 To deal effectively with complaints of harassment, a good anti- harassment procedure should tell workers how to make a complaint. This should not be too restrictive. For example, they should not be required to make a complaint on a specific form. It should also:

• define multiple reporting channels for workers who wish to report harassment, to ensure that a worker is not required to report an incident to the perpetrator or someone who they may feel will not be objective
• set out a range of approaches for dealing with harassment, from informal solutions to formal disciplinary processes
• set out a range of appropriate consequences and sanctions if harassment or victimisation occur
• state that victimisation or retaliation against a complainant will not be tolerated
• provide contact details for and information about support and advice services available to the complainant or alleged harasser, provided by the employer or within the workplace, such as:
  • an employee assistance programme
  • a list of contact points within the employer
  • recognised trade unions, and
• provide contact details for and information about external sources of support and advice both locally and nationally such as:
  • the Equality Advisory and Support Service (EASS)
  • Protect (the whistleblowing charity)
  • local advice centres
  • helplines which have been set up to deal with specific forms of harassment (such as the helplines provided to deal with sexual harassment by the Scottish Women’s Rights Centre in Scotland and Rights of Women in England and Wales)

Informal resolution

4.52 The procedure should tell the worker how they can raise an issue informally. However, the policy should not place the onus on the complainant to resolve an issue personally.

4.53 It should provide the worker with guidance on how to raise the issue directly with the harasser if that is their preferred method, they feel able to and it is appropriate to do so. This may involve the complainant speaking to the harasser directly to explain how their conduct has made them feel and why they would like it to stop. The procedure should not place any pressure on a worker to take this approach.

4.54 Often a complainant may not feel able to resolve an issue directly and may need support from a third party to resolve their complaint. The procedure should ensure that, where a complaint is raised informally, those it is raised with fully engage in resolving the issue and provide guidance on how to do so. The procedure should direct the complainant towards someone (preferably a choice of people) who is equipped to help them resolve their complaint, such as a manager, trade union representative, a harassment ‘champion’ or ‘guardian’ (read paragraph 4.41) or a member of human resources. This person should listen to the complainant and work out how best they can help them to resolve the issue informally and in a way with which the complainant is most comfortable having considered the different options. They may, for example:

• provide the complainant with advice on how to approach the issue directly with the alleged harasser
• support the complainant in raising the issue with the alleged harasser by accompanying them in any discussion or helping them to set out their thoughts in writing
• raise the matter informally with the harasser on the complainant’s behalf
• arrange mediation by a trained mediator between the complainant and the alleged harasser
• help to obtain advice on how best to resolve the issue and / or assistance in doing so from other sources either internally such as from human resources or externally from sources such as Acas
• help to obtain advice on or assistance in dealing with issues relating to particular protected characteristics, such as from a charity with expertise relating to a particular disability
• help to obtain counselling or support for the individual

4.62 Employers should ensure that investigators have appropriate expertise to conduct an investigation and that they have access to appropriate advice, taking into account the nature of the particular complaint to be handled. For example, an investigator appointed to deal with a complaint of antisemitism should have a good understanding of what antisemitism means. An investigator appointed to deal with a complaint where the complainant has suffered trauma because of their experience, should understand how to question the complainant in a way that avoids compounding the trauma.

4.63 Investigators should clearly identify the facts that they need to establish, the questions they will need to ask and the evidence they will need to obtain. Investigators should avoid inappropriate lines of questioning. For example, it would not be appropriate to ask a person who complains of sexual harassment about their sexual history.

• the matter is confidential (subject to any personal legal or regulatory obligations or rights), and 
• breach of confidentiality will be a disciplinary offence

Requests by workers not to take action

4.66 If a worker raises a complaint with the employer but asks them not to take the matter any further, an employer should still take steps to ensure that the matter is resolved. The employer should, for example:

• keep a record of the complaint and the worker’s request to keep the matter confidential
• encourage the worker to address the issue informally, either directly themselves or with support
• provide the worker with any necessary support and guidance on how to address the issue informally
• keep the situation under review by checking in with the worker to find out if the situation has improved
• where the situation has not improved, explain to the worker that it is necessary to address the issue both for their well-being and that of their colleagues

4.67 Where possible, the employer should respect the wishes of the complainant. Not doing so could compound any harm caused by the original conduct. However, there may be circumstances in which the employer should act because the risk of not taking action outweighs the risk arising from overriding the complainant’s wishes. In assessing the relative risk of the options, the employer should ask:

4.68 For example, it may be appropriate to take further action where the harassment is so serious that that there is an immediate risk to the safety of the complainant, their colleagues or anyone else that the harasser may come into contact with. The risks may be higher in cases where criminal behaviour has taken place (read paragraphs 4.70 to 4.74).

4.69 If the employer decides that it must take formal action then it should explain its decision to the complainant and ensure that it has put in place appropriate safeguards to prevent further harassment or victimisation of the complainant (read paragraphs 4.75 to 4.80) as well as support and counselling for the complainant to deal with any impact the decision may have.

4.74 In cases where the police are involved, an employer should discuss the disciplinary process with the police. The employer should not assume that it cannot take any action to investigate the matter until police enquiries or any subsequent prosecution have concluded. The employer should check with the police that it can carry out its own investigation without prejudicing any criminal process. If it is safe to do so, then the employer should consider whether it would be reasonable in all the circumstances to continue with an investigation immediately, rather than to await the outcome of the criminal process. Likewise, if the investigation does not result in a conviction, the employer should not assume that it cannot take further action. Criminal offences must be proved beyond reasonable doubt, meaning that there must be clear evidence supporting the allegation against the accused. An employer, on the other hand, need only have reasonable grounds to conclude that a disciplinary offence has been committed. This could involve, for example, the employer weighing up the evidence of the witnesses and deciding which witness or witnesses have provided the most cogent version of events.

Witnesses to harassment

4.81 The anti-harassment policy should encourage witnesses to harassment or victimisation to take steps to address it. This may include:

• the witness intervening, where the witness feels able to do so
• the witness asking the person subjected to the harassment if they would like the witness to report it or support them in reporting it
• the witness reporting the incident where the witness feels that there may be a continuing risk if they do not report it, and
• requiring witnesses to cooperate in an investigation

4.82 The employer should assure witnesses that it will not subject them to a detriment for providing information and that it will also take steps to prevent them being subjected to a detriment by any other worker.

4.85 Employers should take steps to enable disclosure of the outcomes to complainants where it is appropriate to do so. This includes reviewing contracts, policies, procedures and privacy notices to ensure that they inform workers when the outcome of complaints and disciplinary proceedings may be disclosed.

4.86 The employer should consider on a case-by-case basis each of the grounds on which data can be processed lawfully under Article 6 of the GDPR (and Article 9, where special category data is involved) and what measures it can put in place to ensure that disclosure is proportionate. The employer should record its decision as to whether the outcome can be disclosed or not and its reasons for that decision. Read further guidance on compliance with the GDPR on the Information Commissioner's Office website.

4.89 If a complaint is upheld and the harasser is dismissed, the employer should assess whether any post-employment issues might arise and ensure that it has appropriate processes in place to deal with them. For example:

• How will it answer requests to provide a reference for the harasser, ensuring compliance with its duty not to provide a misleading or inaccurate reference to a potential employer? The employer should consider the risk that harassment may be repeated with a new employer in the future and should not assume that it cannot disclose details of the harassment to the potential employer for data protection reasons. It should instead consider whether the reasons for dismissal can be lawfully disclosed under Article 6 of the GDPR and what measures it can put in place to ensure that disclosure is proportionate, and
• If the workplace is open to the public, how will the employer ensure that the harasser does not target the complainant at work?

Acas: For information and advice on all aspects of workplace relations and employment law.

Citizens Advice: A network of charities offering confidential advice online, over the phone, and in person, for free.

Code of Practice on Employment: Definitive guidance about what the Equality Act means.

Equality Advisory & Support Service: The EASS Helpline advises and assists individuals on issues relating to equality and human rights, across England, Scotland and Wales. EASS can also accept referrals from organisations which, due to capacity or funding issues, are unable to provide face to face advice to local users of their services.

Information Commissioner's Office: For information and advice on data protection.

Law Society's find a solicitor service: To find a solicitor in England and Wales.

Law Works: To find free advice, representation and online resources.

Recruitment & Employment Confederation: For information on recruitment practices and standards, including agency workers’ rights.

TUC: Represents afiliated trade unions. The TUC website provides guidance on workplace issues including a sexual harassment toolkit, for workers and union representatives. It also has a trade union finder tool for those considering joining a trade union.

Rights of Women: Provides a free sexual harassment at work advice line.

Protected characteristic: A term used in the Act to describe the characteristics that people have in relation to which they are protected against discrimination and harassment. Under the Act, there are nine protected characteristics:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

Marriage and civil partnership and pregnancy and maternity are not protected under the harassment provisions (read paragraphs 1.2 to 1.3).

The ‘reasonable steps’ defence: A defence available to employers in claims of harassment. The employer will not be liable for any action of harassment by one of its workers if it can show that it took all reasonable steps to prevent it (read paragraphs 3.49 to 3.56).

Sexual harassment: Unwanted conduct of a sexual nature that has the purpose or effect of violating a worker’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them (read paragraphs 1.19 to 1.32).

Third party harassment: Harassment of a worker by someone who does not work for and who is not an agent of the same employer. For example, a client, customer or service user.

Trans: Trans (or trans men / trans women) is used to refer to any individuals with the protected characteristic of gender reassignment, though some people who identify as trans may not fall within the legal definition.

Unlawful: Contrary to the law and specifically in the context of this guidance, contrary to the Act.

Victimisation: Subjecting someone to a detriment because they have done, or because it is believed they have done or may do a protected act (read paragraphs 2.2 to 2.5).

Worker: As defined under the Equality Act 2010, this is an individual who does work for an employer and is required to do the work personally – that is, they cannot send someone (a substitute) to do the work in their place and are therefore not self-employed. Workers are protected against discrimination, harassment and victimisation under the Equality act 2010. Note that we use the word ‘worker’ in this guidance to include both workers and employees.