Chapter 8 - Harassment

8.1 This chapter explains the Act’s general test for harassment. It also explains the provisions on harassment related to a relevant protected characteristic, the provisions on sexual harassment, and the provisions on less favourable treatment of people who reject or submit to harassment.

8.2 The Act prohibits three types of harassment. These are:

• harassment related to a ‘relevant protected characteristic’ (s.26(1))
• sexual harassment (s.26(2))
• less favourable treatment of an individual because they submit to or reject sexual harassment or harassment related to sex or gender reassignment (s.26(3))

These are explained in detail in this chapter.

8.3 The 'relevant protected characteristics’ for this Code (s.26(5)) are:

• age
• disability
• gender reassignment
• race
• sex

8.4 The Act does not prohibit harassment by a service provider or person exercising a public function of people who are under 18 years old (s.28(1)). This exception does not apply to associations: those under the age of 18 are protected from harassment in this context.

8.5 Pregnancy and maternity are not protected directly under the harassment provisions (s.26(5)). However, pregnancy and maternity harassment would amount to harassment related to sex.

8.6 The prohibition of harassment as described below does not protect individuals who have the protected characteristics of sexual orientation or religion or belief (s.29(8), s.103(2)). However, where unwanted conduct related to either of these protected characteristics results in a person suffering a detriment, that person may be able to bring a claim of direct discrimination (s.212(5)) (read Chapter 4).

8.7 This type of harassment occurs when a service provider, person exercising a public function or association engages in unwanted conduct which is related to a relevant protected characteristic (s.26(1)(a)), and which has the purpose or the effect of:

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

8.8 Conduct that has one of these effects can be harassment even if the effect was not intended. For more information, read about ‘purpose or effect’ in paragraphs 8.16 to 8.22.

Meaning of ‘unwanted conduct’

8.10 Unwanted conduct covers a wide range of behaviour, including:

• spoken or written words or abuse
• ‘banter’ (teasing or joking talk that is intended to be humorous or friendly)
• imagery
• graffiti
• physical gestures
• facial expressions
• mimicry
• jokes
• pranks
• acts affecting a person’s surroundings or other physical behaviour

8.11 This behaviour could be face-to-face, on the phone, in text messages or online, for example through social media or online chat. Unwanted conduct also includes inaction by a service provider, person exercising a public function or association, if that inaction is related to a protected characteristic [footnote 62].

8.13 The word unwanted means essentially the same as ‘unwelcome’ or ‘uninvited’ and means ‘unwanted by the recipient’. It should be considered from their subjective point of view. However, external factors may be considered by a court in deciding whether it accepts that, subjectively, the conduct was unwanted.

8.14 It is not necessary for any objection to be made to the conduct for it to be ‘unwanted’. However, when determining whether conduct was unwanted, a court may take account of whether there was an objection (amongst other things). A serious one-off incident can amount to harassment.

8.16 Regardless of any intended purpose, for all three types of harassment set out in paragraph 8.2, if subjecting the individual to the unwanted conduct has the effect of violating the individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them, this will be sufficient to establish unlawful harassment. The intended purpose or motive behind the conduct is irrelevant.

8.19 In deciding whether conduct has the effect of creating any of the circumstances defined in paragraph 8.16, points 1) to 3) below must be considered (s.26(4)).

1. The perception of the individual (s.26(4)(a)); did they regard it as violating their dignity or creating an intimidating (etc.) environment for them? This part of the test is a subjective question and depends on how the individual regards the conduct. If the individual does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have the effect described in paragraph 8.7 [footnote 63].
2. The other circumstances of the case (s.26(4)(b)). Circumstances that may be relevant and need to be considered can include:
   • the personal circumstances of the individual experiencing the conduct, for example, their health, including mental health, their mental capacity, cultural background, race or ethnicity, religion, belief or previous experience of harassment
   • the environment where the conduct took place, for example, where the service provider, person exercising a public function or association is in a position of trust with the individual, or holds any other form of power over them
   • whether the conduct was within an organisation or institution where there is a regular and continuing relationship between that organisation or institution and the individual, such as a hospital or residential care establishment, community home or a prison
   • whether the conduct was intended to cause offence. Conduct that is obviously intended to cause offence is much more likely to be found to have the effect described in paragraph 8.7 [footnote 64]
3. Whether it is reasonable for the conduct to have that effect (s.26(4)(c)); this is an objective test.
   Courts are unlikely to find that the unwanted conduct has the effect of, for example, offending a service user if the court considers the service user to be hypersensitive and that another person subjected to the same conduct would not have been offended.

8.20 It is relevant to consider whether the alleged harasser is exercising any other rights. For example, if they are expressing an opinion related to a religious or philosophical belief, they may be protected from discrimination and harassment because of or related to that belief.  For further information about the protected characteristic of religion and belief, read paragraphs 2.65 to 2.80.

8.21 It is also relevant to consider whether the alleged harasser was exercising any of their convention rights protected under the Human Rights Act 1998. For example, the right to freedom of thought, conscience, and religion or the right to freedom of speech of the alleged harasser will need to be taken into account when considering all relevant circumstances of the case.

8.22 Public authorities also have a duty under the Human Rights Act 1998 not to act incompatibly with rights under the European Convention on Human Rights. Even where the alleged harasser is not a public authority, the court or tribunal must ensure that it interprets the Act compatibly with Convention rights where it can (read paragraphs 1.16 to 1.18).

8.23 Unwanted conduct ‘related to’ a relevant protected characteristic has a broad meaning. It can include many situations, such as those described in paragraphs 8.24 to 8.34.

8.24 Harassment can be related to an individual’s own protected characteristic.

8.26 Protection from harassment also applies where a person is generally abusive, but, in relation to a particular individual, the form of the unwanted conduct relates to that individual's protected characteristic.

8.28 An individual does not have to possess the relevant protected characteristic themselves for protection from harassment to arise. This can happen in several different situations.

1. An individual may be associated with someone who has a protected characteristic.

   Example

   A party of adults with learning difficulties have a meal in a restaurant accompanied by their support workers. Some of the restaurant staff make fun of the party with gestures and silently mimicking them. The support workers are very upset by the conduct of the staff for creating a degrading and humiliating environment for them, as well as for the adults they support. The support workers could bring a claim of harassment related to disability.

2. An individual may be wrongly perceived as having a particular protected characteristic.

   Example

   A woman in her 50s looks older due to past illness. When she applies for membership of a local social club, the membership secretary makes comments to her such as, ‘This club isn’t suitable for pensioners’ and ‘Members wouldn’t feel comfortable with someone of your age at club events’. The woman finds these remarks deeply humiliating and they could amount to harassment related to age – even though she has been wrongly perceived as belonging to an older age group.

3. An individual may be known not to have a particular protected characteristic but nevertheless is subjected to harassment related to that characteristic.

   Example

   A member of staff at a local shop calls a teenage boy by a racial slur when he comes in. The staff member knows the boy is not of that race, and he regards this name calling as just a joke. The boy now hates coming to the shop, especially with his friends as he dreads being insulted and verbally abused.

8.29 Protection from harassment can arise where the unwanted conduct related to a protected characteristic is not directed at a particular individual, but at another person or nobody.

8.31 Protection from harassment applies where conduct is not overtly because of a protected characteristic but is associated with it.

8.33 Protection from harassment applies where conduct is not overtly because of a protected characteristic, but the motives of the harasser mean that it is related to it.

8.35 Sexual harassment occurs when a person engages in unwanted conduct of a sexual nature, which has either the purpose or effect described in paragraph 8.7 (s.26(2)). The concept of ‘unwanted conduct’ is explained in paragraphs 8.10 to 8.15.

8.36 Conduct ‘of a sexual nature’ can cover verbal, non-verbal or physical conduct, including:

• unwelcome sexual comments or questions
• sexual advances
• staring or leering
• touching
• gestures
• sexual assault
• sexual jokes
• displaying sexual or erotic videos, photographs, drawings or images

8.37 Sexual harassment can happen face-to-face, in phone calls, text messages or online, such as on social media or online chat.

8.38 Conduct of a sexual nature can be from someone of the same or opposite sex. Conduct that was welcomed in the past may become unwanted, for example where two people had a sexual relationship in the past, which has now ended.

8.40 The third type of harassment occurs when an individual is treated less favourably by a service provider, person exercising a public function or association because that individual has submitted to or rejected unwanted conduct of a sexual nature, or unwanted conduct which is related to sex or gender reassignment, and the unwanted conduct creates any of the circumstances defined in paragraph 8.7 for them (s.26(3)).

8.41 Under this type of harassment, it may be the same person who is responsible for the initial unwanted conduct and subsequent unfavourable treatment, or it may be a different person (s.26(3)(a)).

Liability of employers and principals

8.44 Employers and principals (as service providers, persons exercising a public function or associations) can avoid liability for harassment carried out by their employees or agents if they take all reasonable steps to prevent harassment occurring (s.109(4)). Read paragraphs 3.40 to 3.42 for further detail.

62. Conteh v Parking Partners Ltd [2011] EqLR 332
63. Pemberton v Inwood [2018] ICR 1291
64. Pemberton v Inwood [2018] ICR 1291
65. Unite the Union v Nailard [2018] EWCA Civ 1203