Legal background
- Harassment in the workplace is prohibited under the 2010 Act. Section 26 of the 2010 Act defines three types of harassment. The first type, set out in section 26(1) of the 2010 Act, which applies to all the protected characteristics apart from pregnancy and maternity, and marriage and civil partnership, involves unwanted conduct which is related to a relevant characteristic and which has the purpose or effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim.
- The second type of harassment, set out in section 26(2) of the 2010 Act, is sexual harassment, which is defined as unwanted conduct of a sexual nature that has the purpose or effect of violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim.
- The third type, set out in section 26(3) of the 2010 Act, is treating someone less favourably than another because they have either submitted, or failed to submit, to sexual harassment or harassment related to sex or gender reassignment.
- Section 40 of the 2010 Act prohibits employers from harassing their employees or job applicants. Under section 109 of the 2010 Act employers may be vicariously liable for acts of discrimination, harassment and victimisation carried out by their employees in the course of employment. The combined effect of these provisions means that an employer may be legally liable for sexual harassment carried out by their staff. This employer liability applies regardless of whether or not they have approved, or are even aware of, their employees’ actions.
- Section 109(4) of the 2010 Act provides that employers have a legal defence if they can show that they took ‘all reasonable steps’ to prevent their employee from acting unlawfully.
- Sections 20-24A of the 2006 Act set out the Equality and Human Rights Commission’s (EHRC’s) enforcement powers relevant to the Act. These include the power to conduct investigations in relation to an unlawful act under the 2010 Act, to issue an unlawful act notice, to make action plans or enter into agreements with the person who has committed the unlawful act. It can also apply for an injunction against that person in relation to the breach. See the EHRC’s website
for more detail on its enforcement powers.
