Workplace harassment is a form of unlawful discrimination. Employers are under a legal duty to prevent discrimination in the workplace and to ensure the wellbeing of their workforce.
Where a worker can show they have been subjected to harassment at work, they may be able to bring a claim against their employer under the Equality Act 2010.
For employers, it is important to take action to manage the legal risk of harassment complaints in the workplace, which in turn will help to avoid associated issues of low workforce morale and poor staff retention.
What is workplace harassment?
Harassment relates to offensive, intimidating, malicious, insulting or humiliating behaviour, or an abuse of power or authority which attempts to undermine an individual or group of workers.
A complaint about workplace harassment must be based on unwanted behaviour relating to one of the following ‘protected characteristics’, as prescribed in the Equality Act 2010, that is possessed either by the worker or a person they are associated with:
- Gender reassignment
- Marriage or civil partnership
- Pregnancy or maternity
- Religion or belief
- Sexual orientation
In an employment law context, harassment and bullying are usually seen as different. Guidance from ACAS and the HSE refers to workplace bullying as negative behaviour that is not related to a discernible characteristic. Unlike harassment, which offers protection in qualifying circumstances under the Equality Act, bullying is not recognised formally in law as unlawful behaviour.
However, employers operate under a general duty of care to provide a safe working environment that does not affect employees’ health and safety. Failure to do this, or to address reports of bullying, can result in workplace disputes or legal complaints, such as a constructive dismissal claim.
What are examples of workplace harassment?
While harassment has a very specific meaning in employment law, it can come in many different forms. It applies at any time, whether face to face, in writing, by phone or online. It can involve two people or groups of people, and it can relate to one incident or a pattern or series of events.
Some examples of workplace harassment could include:
- Personal insults or threats
- Spreading malicious rumours
- Unfair criticism and allocations of blame
- Jokes or ‘friendly banter’
- Excluding from activities or social events
- Asking intrusive questions
Sexual harassment, such as unwelcome sexual advances, standing too close or making decisions on the basis of sexual advances being accepted or rejected, is a specific form of unlawful discrimination under the Equality Act 2010.
Harassment also applies whether the conduct referred directly to the worker or someone else. For example, if a worker overhears colleagues making racist jokes or comments to each other, they may be protected by the provisions of the Equality Act.
Can an employer be sued for workplace harassment?
Yes, in some circumstances, employers can be taken to an Employment Tribunal for unlawful discrimination.
Employers are legally responsible for the behaviour of their employees and are required to take reasonable steps to challenge and prevent all types of workplace harassment.
Context will be highly significant. The defence of ‘banter’ is often relied on for workplace harassment issues, making evidence critical to rebut any such allegations.
An employer may be able to rely on defence against harassment where they can show they took all reasonable steps to prevent the harassment or misconduct being complained of.
Workers can only take legal action relating to workplace harassment if they qualify under the provisions of the Equality Act 2010. This would include, for example, current and former workers and some self-employed people and freelancers.
It is important to note that there is no minimum employment service requirement for a worker to bring a harassment claim.
The worker also does not need to have resigned to bring a claim. In such cases where the worker remains employed, they are protected by law from victimisation and unfair treatment in retaliation for making a complaint.
Those who are not protected by the Equality Act, such as volunteers and illegal workers, may be eligible to take action such as bringing a civil claim under the Protection from Harassment Act 1997.
If protected under the Equality Act, workers may be able to bring a claim for damages if they can show they have been subjected to unwanted conduct in the workplace because of a protected characteristic that they or someone related to them possesses, and this conduct had the purpose or effect of violating their dignity, humiliating them, degrading them or creating an offensive work environment for them.
Under sections 109 and 110 of the Equality Act 2010, employers are responsible (‘vicariously liable’) for any harassment perpetrated in the workplace, at work-related events or business trips and social events.
Tribunal claims under the Equality Act must be made within three months less one day of the date that the harassment occurred, or that the individual became aware of the issue.
Workers who are successful in bringing harassment claims can be awarded compensation. Where there is economic loss, damages are uncapped. Where the employee remains employed and there is no economic loss, damages will usually be limited to injury to feelings.
How should you handle a complaint about workplace harassment?
Bullying and harassment in the workplace can have a devastating effect on an individual. Employers should encourage workers to come forward with any concerns they have to allow the opportunity for the employer to investigate and take steps to resolve the issue.
It is best practice to have a bullying and harassment policy in place to set the standards and expectations in behaviours and to communicate the procedure for making a complaint. Taking early action within a clear and supportive framework can help to avoid issues escalating into legal risk.
In the first instance, workers should be encouraged discuss the issue with their supervisor or line manager.
Who they opt to notify will depend on the circumstances; if it is their manager they are complaining about, it is likely they will bring the complaint to HR or another manager in the organisation.
Records should be kept of all discussions, however informal. This will require line managers to be trained on handling such discussions and the expectations on them to take appropriate action and to keep records of harassment concerns raised by workers.
If the matter is not resolved through informal channels, the employee may then make a formal complaint through the organisation’s grievance procedure. Usually, workers are expected to provide a grievance letter, detailing times and dates of incidents, statements from any witnesses, copies of relevant emails, minutes and other types of documentation that support their case.
Most employees complaining of harassment at work will take legal advice before making a grievance, to understand whether their complaint qualifies as discrimination under law and what their next steps should be. Employers are likewise advised to take professional guidance on their position and legal options to protect their interests.
Once you have received the grievance, you should promptly conduct a full and fair investigation into the allegations. Consider who should lead the investigation, try to preserve objectivity of the process by ensuring any parties involved in the complaint are without decision-making powers in the investigation. For smaller employers, this may require an external specialist to be brought in to conduct the investigation.
Following the investigation, a grievance hearing should then be held to discuss all of the evidence and to allow the worker to talk about their complaint in detail.
A decision should then be made and communicated to the worker, with details of the appeals process if the decision was not in their favour. If the worker is not satisfied after the appeal, depending on the circumstances, they may consider bringing a tribunal claim.
In some circumstances, the most appropriate solution for the employer and employee may be negotiating a settlement and exit from the organisation. Taking legal advice will ensure you are proceeding on the most suitable basis for your organisation.
What if the worker has resigned due to harassment?
Workers may still be able to take action if they can prove they left their job as a direct result of workplace harassment.
If the worker has resigned as a direct result of the harassment, and they can show this fundamentally breached trust and confidence in the employment relationship making it untenable for the individual to continue working there, they may be able to make a claim for constructive dismissal. They will generally need to have a minimum of two years’ service for constructive dismissal.
Tribunal claims under the Equality Act must be made within three months less one day of the date that the harassment occurred, or that the individual became aware of it, or of their last date of employment in a constructive dismissal case.
How should you deal with complaints about sexual harassment?
The Equality Act specifically prohibits sexual harassment in the workplace. This applies to verbal, non-verbal and physical contact.
It protects employees and some other types of workers, both male and female, from being subject to unwanted conduct of a sexual nature with the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, as defined under the Equality Act 2010.
Employers should follow a fair and lawful process, as outlined above, to handle complaints about sexual harassment at work.
If a complaint is upheld through the grievance process, the employer should take appropriate action in line with the organisation’s disciplinary policy – such as relocating one of the parties – while avoiding the potential for constructive dismissal.
DavidsonMorris’ employment law specialists are on hand to advise on workplace harassment complaints. Working closely with our team of HR consultants, we provide employers with a comprehensive support and advisory service addressing the legal and HR elements of a discrimination complaint, while ensuring your best interests are protected. Consideration may also be given to negotiating a settlement agreement and severance terms to avoid coming before the tribunal. We can also advise on proactive measures employers can take to reduce the people and legal risks of workplace discrimination. For advice on a specific issue, contact us.
Workplace harassment FAQs
What defines workplace harassment?
Harassment at work refers to situations where someone causes you offence, humiliation or makes you feel uncomfortable or intimidated through ‘unwanted conduct’. Harassment is unlawful under the Equality Act 2010 where it relates to a 'protected characteristic’, such as gender, age, being pregnant or having a disability.
What are examples of harassment?
Harassment can take many forms, which can include spreading malicious rumours, subjecting someone to unfair treatment or making personal insults, derogatory comments or expressions. ‘Friendly banter’ can also meet the definition of harassment in the Equality Act.
How do you complain about harassment at work?
Workers should raise the issue with their employer at the earliest opportunity. This complaint should be dealt with fairly under the organisation’s grievance procedure. Only conduct defined as harassment in the Equality Act 2010 can be taken to the Employment Tribunal.