Harassment in the Workplace
Harassment is prohibited under the Equality Act 2010 (EqA 2010) and can expose both employers and individual perpetrators to significant legal liability. This guide explains the legal definition of harassment, the circumstances in which employers may be held liable, the steps employers should take to prevent harassment, and the remedies available to employees who experience harassment.
The EqA 2010 protects employees from harassment related to most protected characteristics, including age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. Employers may be held vicariously liable for harassment carried out by employees in the course of employment unless they can demonstrate that they took all reasonable steps to prevent the conduct occurring.
In addition, employers are subject to a specific duty to take reasonable steps to prevent sexual harassment of employees. This preventative duty requires employers to take proactive measures to identify risks, implement safeguards and respond appropriately where sexual harassment occurs.
Failure to comply with these obligations can result in employment tribunal claims, compensation awards, reputational damage and enforcement action.
Understanding Harassment
Legal Definition of Harassment
Section 26 of the Equality Act 2010 contains three separate definitions of harassment.
The general definition provides that a person (A) harasses another person (B) where:
● A engages in unwanted conduct related to a relevant protected characteristic; and
- the conduct has the purpose or effect of either:
● violating B’s dignity; or
● creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
The protected characteristics relevant to harassment claims are:
● age;
● disability;
● gender reassignment;
● race;
● religion or belief;
● sex; and
● sexual orientation.
Marriage and civil partnership, and pregnancy and maternity, are not standalone protected characteristics for the purposes of harassment. However, conduct relating to pregnancy or maternity may amount to harassment where it is related to another protected characteristic, such as sex.
The statutory definition is intentionally broad and can cover a wide range of workplace behaviour, including comments, jokes, exclusion, unwanted attention, inappropriate communications and conduct that creates a hostile working environment.
The Three Forms of Harassment
The Equality Act 2010 recognises three forms of harassment.
1. Harassment Related to a Protected Characteristic
This is the general form of harassment and applies where unwanted conduct is related to a protected characteristic.
The conduct does not need to be motivated by hostility towards the protected characteristic. It is sufficient that there is a connection between the conduct and the characteristic.
Examples may include:
● making racist comments or jokes;
● excluding an employee because of their disability;
● making derogatory remarks about someone's sexual orientation; or
● repeatedly commenting on a colleague’s age.
The conduct may also amount to harassment where it relates to someone else’s protected characteristic (known as associative harassment) or where the perpetrator wrongly believes that the individual has a particular protected characteristic.
2. Sexual Harassment
Sexual harassment occurs where a person engages in unwanted conduct of a sexual nature and that conduct has the purpose or effect of:
● violating the individual's dignity; or
● creating an intimidating, hostile, degrading, humiliating or offensive environment.
Sexual harassment is not limited to physical behaviour. It can include:
● sexual comments or jokes;
● unwanted advances;
● inappropriate messages or images;
● comments about appearance;
● intrusive questions about a person's private life; or
● sexualised workplace behaviour.
A single incident can amount to sexual harassment, and the employee does not need to have previously told the perpetrator that the conduct was unwanted.
3. Harassment Following Rejection or Submission to Sexual Conduct
The third form of harassment applies where:
● a person engages in unwanted conduct of a sexual nature, or conduct related to sex or gender reassignment;
● the conduct has the purpose or effect of violating dignity or creating an intimidating hostile, degrading, humiliating or offensive environment; and
● because the individual rejected or submitted to the conduct, they are treated less favourably.
This provision is designed to protect individuals from retaliation where they refuse unwanted sexual conduct or where they submit to it and are subsequently treated differently.
Examples include:
● denying promotion because an employee rejected unwanted advances;
● reducing an employee’s responsibilities after they refused a personal relationship; or
● treating an employee unfavourably because they tolerated inappropriate conduct rather than objecting to it.
Key Features of Harassment Claims
Unwanted Conduct
The conduct must be unwanted, meaning that the employee did not invite or welcome it. The employee does not need to expressly object at the time.
A failure to complain immediately, continue working with the alleged harasser, or attempt to ignore the conduct does not necessarily mean the conduct was welcomed.
One-Off Incidents
A single incident can amount to harassment. There is no requirement for the conduct to be repeated or part of a pattern of behaviour.
However, whether conduct has the required effect will depend on the circumstances, including its seriousness and the context in which it occurred.
The Conduct Does Not Need to Be Directed at the Employee
Harassment can occur even where the employee is not the direct target of the conduct.
For example, an employee may experience harassment by overhearing racist, sexist or homophobic comments made about another person.
The Equality Act 2010 also protects employees against:
● associative harassment, where conduct relates to another person's protected characteristic; and
● perceptive harassment, where conduct is based on an incorrect belief that someone has a protected characteristic.
The Purpose or Effect Test
To establish harassment, the conduct must either have the purpose or effect of:
● violating the employee’s dignity; or
● creating an intimidating, hostile, degrading, humiliating or offensive environment.
Where the conduct was not intended to have this effect, the tribunal must consider whether it was reasonable for the conduct to have had that effect.
This involves consideration of:
● the employee’s perception;
● the other circumstances of the case; and
● whether it was reasonable for the conduct to have that effect.
The employee’s subjective perception is important, but the tribunal must also apply an objective assessment. This prevents liability arising from an entirely unreasonable or hypersensitive reaction.
Employer Liability for Harassment
Vicarious Liability for Employee Harassment
Employers may be held legally responsible for harassment carried out by their employees where the conduct occurs in the course of employment.
Under section 109 of the Equality Act 2010, anything done by an employee in the course of employment is treated as also having been done by the employer, regardless of whether the employer knew about, approved of, or authorised the conduct.
This means an employer may be liable for harassment committed by:
● managers;
● supervisors;
● colleagues; or
● other employees.
Whether conduct occurred “in the course of employment” is a question of fact for the tribunal. The phrase is interpreted broadly and does not require the conduct to have been authorised or encouraged by the employer.
Examples of conduct potentially falling within the course of employment include:
● harassment during working hours;
● inappropriate workplace communications;
● harassment at work-related social events;
● harassment during business travel; or
● conduct carried out through workplace systems or platforms.
However, where an employee’s actions are entirely disconnected from their employment, the employer may avoid liability.
The “All Reasonable Steps” Defence
An employer has a statutory defence under section 109(4) of the Equality Act 2010 where it can demonstrate that it took all reasonable steps to prevent:
● the employee from carrying out the discriminatory act; or
● employees from carrying out acts of that description.
The burden is on the employer to establish the defence.
The defence focuses on preventative measures taken before the harassment occurred. Steps taken after an incident, such as investigating a complaint or disciplining the perpetrator, may be relevant to showing an appropriate response but will not, by themselves, establish the defence.
A workplace policy alone is unlikely to be sufficient. Tribunals will consider whether policies were:
● properly implemented;
● communicated effectively;
● supported by appropriate training;
● regularly reviewed; and
● enforced consistently.
The effectiveness of the employer’s approach will be assessed in light of the size, resources and circumstances of the organisation.
Duty to Prevent Sexual Harassment
Statutory Preventative Duty
From 26 October 2024, section 40A of the Equality Act 2010 introduced a duty requiring employers to take reasonable steps to prevent sexual harassment of employees in the course of employment.
Unlike traditional discrimination duties, this is a proactive obligation. Employers are not required merely to respond after harassment has occurred; they must take steps to identify and reduce the risk of sexual harassment occurring.
The duty is:
● anticipatory, requiring employers to consider risks before incidents occur; and
● ongoing, requiring employers to review and improve preventative measures.
The duty applies regardless of whether sexual harassment has previously occurred within the organisation.
What Are Reasonable Steps?
What amounts to reasonable steps depends on the circumstances of each employer.
Relevant factors may include:
● the size and resources of the organisation;
● the nature of the workplace;
● the sector in which the employer operates;
● the level of interaction between employees and third parties;
● identified risks within the workplace; and
● previous complaints or concerns raised by employees.
There is no fixed checklist of steps that every employer must take. However, effective preventative measures are likely to include:
● carrying out workplace risk assessments;
● implementing clear anti-harassment policies;
● providing appropriate staff training;
● ensuring employees understand reporting procedures;
● training managers to identify and respond to concerns;
● monitoring workplace culture; and
● taking prompt action when concerns arise.
Increase in Compensation for Failure to Prevent Sexual Harassment
Where an employment tribunal finds that an employer has committed sexual harassment and awards compensation, it must consider whether the employer also breached its duty to take reasonable steps to prevent sexual harassment.
Where there has been a breach of the preventative duty, the tribunal may increase compensation by up to 25%.
The uplift is additional to other compensation available in discrimination claims, including compensation for:
● financial losses;
● injury to feelings;
● aggravated damages in appropriate cases; and
● other losses flowing from the harassment.
Third-Party Harassment
Current Position
Employers may face risks from harassment carried out by third parties, including:
● customers;
● clients;
● contractors;
● service users; and
● members of the public.
Although employees cannot currently bring a standalone claim against an employer solely because of third-party harassment, employers should still consider third-party risks as part of their preventative duty.
The Equality and Human Rights Commission (EHRC) guidance confirms that employers should assess situations where employees may come into contact with third parties and take reasonable steps to minimise risks.
Examples include:
● lone working environments;
● customer-facing roles;
● healthcare settings;
● hospitality environments; and
● workplaces involving vulnerable service users.
Future Reform: Third-Party Harassment Liability
The Employment Rights Act 2025 introduces reforms intended to restore employer liability for third-party harassment.
Once brought into force, section 21 of the Employment Rights Act 2025 will make employers liable where:
● a third party harasses an employee in the course of their employment; and
● the employer fails to take all reasonable steps to prevent that harassment.
The reform will apply across relevant protected characteristics rather than being limited solely to sexual harassment.
Employers will therefore need to ensure that their harassment prevention strategies consider not only employee-to-employee conduct but also risks arising from external individuals.
Future Reform: Strengthening the Preventative Duty
The Employment Rights Act 2025 will also strengthen the preventative duty relating to sexual harassment.
Section 20 of the Act will amend section 40A of the Equality Act 2010 by replacing the requirement to take reasonable steps with a requirement to take all reasonable steps to prevent sexual harassment.
The government will have power to introduce regulations specifying steps that employers should take, or steps that may be regarded as insufficient.
The changes are expected to come into force from October 2026, with further regulations expected following consultation.
The effect will be to place greater emphasis on employers demonstrating active and comprehensive prevention strategies rather than relying on policies and reactive measures alone.
Employers should adopt a proactive approach to preventing harassment. Having policies in place is important, but tribunals will examine whether those policies are actively implemented and whether the employer has created a workplace culture where inappropriate conduct is identified, challenged and addressed.
Effective prevention requires a combination of:
● clear workplace standards;
● appropriate policies and procedures;
● regular training;
● effective reporting mechanisms;
● monitoring and review; and
● prompt action when concerns are raised.
A failure to take preventative measures may expose an employer not only to liability for harassment itself but also to increased compensation where the employer has breached its statutory duty to prevent sexual harassment.
Equal Opportunities Policies
Although employers are not generally under a statutory obligation to maintain an equal opportunities policy, the Equality and Human Rights Commission (EHRC) recommends that employers adopt one.
An effective equal opportunities policy can:
● communicate the organisation’s commitment to equality and inclusion;
● establish expected standards of workplace behaviour;
● explain employees’ responsibilities;
● assist managers in handling concerns consistently; and
● support an employer’s argument that it took reasonable steps to prevent unlawful conduct.
To be effective, the policy should not simply exist as a document. Employers should ensure that:
● employees are aware of the policy;
● the policy is accessible;
● managers understand their responsibilities;
● employees receive appropriate training; and
● breaches are dealt with consistently.
A policy that is ignored in practice is unlikely to assist an employer in establishing the “all reasonable steps” defence.
Anti-Harassment and Bullying Policies
Employers should maintain a specific anti-harassment policy setting out their approach to preventing and responding to harassment.
A comprehensive policy should:
● confirm that harassment, sexual harassment and victimisation are unlawful;
● explain that such conduct will not be tolerated;
● define the different forms of harassment;
● provide practical examples relevant to the workplace;
● explain how employees can report concerns;
● identify available support mechanisms;
● explain how complaints will be investigated; and
● confirm that disciplinary action may follow where allegations are upheld.
The policy should also explain that harassment may occur in a range of workplace settings, including:
● offices;
● remote working environments;
● work-related social events;
● business trips;
● online communications; and
● interactions with customers or other third parties.
Employers should also explain that aggravating factors may increase the seriousness of misconduct. Examples include:
● abuse of managerial authority;
● targeting vulnerable employees;
● repeated conduct after concerns have been raised; and
● attempts to retaliate against a complainant.
Workplace Risk Assessments
Risk assessment is a key element of complying with the preventative duty to prevent sexual harassment.
Employers should identify situations where employees may be at increased risk and consider what preventative measures are appropriate.
Relevant areas for consideration may include:
● workplaces with significant power imbalances;
● environments involving alcohol or social events;
● isolated or lone-working arrangements;
● customer-facing roles;
● industries with historically higher risks of harassment;
● workplaces where complaints have previously been raised; and
● online working environments.
A meaningful risk assessment should consider:
● The risk factors What situations or behaviours create potential risks?
● The employees affected
Which groups or individuals may be particularly vulnerable?
● Preventative action
What steps can reduce or remove those risks?
● Monitoring
How will the employer assess whether the measures are effective?
The EHRC recommends that employers develop an action plan identifying preventative steps and explaining how those measures will be reviewed.
Staff Training
Training is one of the most important preventative steps available to employers.
Effective training should ensure employees understand:
● what harassment is;
● examples of unacceptable behaviour;
● how to challenge inappropriate conduct;
● how to report concerns;
● the consequences of harassment; and
● their responsibilities towards colleagues.
Training should be practical rather than a simple compliance exercise.
A short online module requiring employees merely to acknowledge a policy is unlikely to be sufficient where an employer seeks to rely on the “all reasonable steps” defence.
Tribunals may consider:
● the content of training;
● how frequently training is provided;
● whether training reflects workplace risks;
● whether employees understand the reporting process; and
● whether managers receive enhanced training.
Managers and supervisors should receive additional training because they are often responsible for:
● identifying inappropriate behaviour;
● responding to complaints;
● managing workplace relationships; and
● ensuring policies are followed.
Reasonable Steps: Practical Summary
While the appropriate steps will depend on the organisation, employers should generally consider:
● implementing and regularly reviewing equality, diversity and inclusion policies;
● maintaining clear anti-harassment and bullying procedures;
● communicating policies effectively to all workers;
● providing regular harassment prevention training;
● ensuring managers receive enhanced training;
● conducting workplace risk assessments;
● creating accessible reporting channels;
● responding promptly and fairly to complaints;
● investigating concerns properly;
● taking appropriate disciplinary action where allegations are upheld; and
● reviewing lessons learned after incidents occur.
Employers should be able to demonstrate not only that these measures exist, but that they are actively used and embedded within workplace culture.
Monitoring and Evaluation
Preventative measures should be reviewed regularly to ensure they remain effective.
Employers should consider monitoring:
● formal and informal complaints;
● grievance trends;
● employee feedback;
● staff survey results;
● exit interview information;
● disciplinary outcomes; and
● recurring workplace concerns.
The EHRC recommends that employers evaluate effectiveness by:
● reviewing complaint data for patterns;
● conducting anonymous staff surveys;
● comparing reported incidents with survey results;
● carrying out lessons-learned reviews after complaints;
● reviewing policies following incidents; and
● assessing whether training remains appropriate.
A lack of reported complaints does not necessarily indicate that harassment is absent. Employers should consider whether employees feel confident and safe reporting concerns.
Handling Harassment Complaints
Importance of a Proper Investigation
A fair and thorough investigation is essential when an employer receives a harassment complaint.
Effective complaint handling can:
● resolve workplace issues;
● prevent further harm;
● demonstrate compliance with preventative duties;
● maintain employee confidence; and
● reduce the risk of litigation.
Employers should ensure complaints are handled:
● promptly;
● impartially;
● confidentially;
● sensitively; and
● in accordance with appropriate procedures.
Reporting Channels
Employees should have access to multiple ways of raising concerns.
A reporting process should not require an employee to:
● report directly to the alleged perpetrator;
● use only one designated individual;
● complete unnecessarily restrictive forms; or
● raise the complaint within an unrealistic timeframe.
Possible reporting channels may include:
● line managers;
● HR;
● designated safeguarding or wellbeing contacts;
● employee assistance services; and
● independent reporting systems.
Providing multiple routes helps ensure employees feel able to report concerns safely.
Investigating Complaints Even Where No Formal Complaint Is Made
Employers should consider investigating allegations of harassment even where:
● the employee does not wish to make a formal complaint;
● the employee has left employment; or
● the complaint is raised informally.
Failing to investigate may:
● allow inappropriate behaviour to continue;
● expose other employees to risk;
● damage workplace culture; and
● suggest that the employer has failed to comply with its preventative duties.
The appropriate response will depend on the circumstances, including the seriousness of the allegations and the wishes of the complainant.
This guide provides general information only and is not legal advice. Anyone considering a specific contract claim or counterclaim, whether an employer or an employee, should contact us here contact@gec-law.co.uk for legal advice.