Harassment

Harassment

Definitions

There are three definitions of harassment in section 26 of the Act:

1. the    general         definition         of        harassment         related         to             a         protected characteristic,

2. conduct of a sexual nature, and

3. less favourable treatment because of a person’s rejection of or submission to harassment of a sexual nature or harassment related to sex or gender reassignment.

Section 26 Equality Act 2010

The definition of harassment is wide-ranging and can include behaviour ranging from malicious or unintentional.

Section 26(1) EA states: A person (A) harasses another (B) if –  

“(a)  A engages in unwanted conduct related to a relevant protected characteristic, and 

(b)   the conduct has the purpose or effect of –  

(i)   violating B’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”

Section 26(4) EA provides that

“in deciding whether the conduct had the effect referred to in subsection (1)(b) each of the following must be taken into account –

(a)  the perception of B;

(b)  the other circumstances of the case;

(c)  whether it is reasonable for the conduct to have that effect.”

Harassment of a sexual nature

Section 26(2) EA provides that a person (A) also subjects a woman/man to harassment if:

“(a) A engages in unwanted conduct of a sexual nature, and

 (b) the conduct has the purpose or effect referred to in subsection (1)(b).”

Section 26(3) EA also makes it unlawful to treat a person less favourably because they have either rejected or submitted to sexual harassment or harassment related to sex (or gender reassignment). It provides that harassment will occur if: 

“‘because of B’s rejection of or submission to the conduct, A treats B less favourably than would treat B if B had not rejected or submitted to the conduct.”

Defences

There is no statutory defence to harassment. However, the alleged perpetrator can claim that the definition has not been made out, by contending either that the conduct was not unwanted or that it did not have the effect on the claimant as defined under s.26 EA. Employers, who are vicariously liable under s.109(1) EA, can deny liability (s.109(4) EA).

Examples of harassment

Exclusion; spreading malicious rumours; bullying; misuse of power; unwelcome sexual advances or other oppressive behaviour; undermining with excessive criticism; preventing individuals progressing; overtly insulting behaviour.