What is unlawful harassment under the Equality Act 2010?
Harassment in relation to a protected characteristic is unlawful according to the Equality Act 2010. Harassment is defined as unwanted conduct which is related to a protected characteristic and has the purpose or effect of violating the victim’s dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim. The protected characteristics in relation to harassment include age, disability, gender reassignment, race, religion, sex and sexual orientation.
In addition, sexual harassment is also unlawful under the Equality Act 2010. Additional changes are being brought into the law surrounding sexual harassment, which are outside of the focus of this article.
Employees may bring claims in the Employment Tribunal against their employers where an individual at their work has harassed them in relation to a protected characteristic, but their harasser must either be an employee or an agent of their employer. Currently, this means, that employees cannot bring against their employer for other third parties.
What changes are expected to protect from harassment under the Equality Act 2010?
The Employment Rights Bill is currently on track to be passed and come into force in October 2025. Whilst there are many changes in the bill coming, one considerable change to the rights of employees is the plan to increase employer liability for harassment to include harassment from 3rd parties.
The draft bill described 3rd parties as any individual, who is not an employee of the employer. For these purposes, 3rd parties are likely to differ depending on the industry of the employee. However, they could include customers, patients, suppliers, and members of the public, with whom the employee makes contact in the course of their employment. This change therefore has the potential to significantly increase the scope of claims for harassment for employees, where they can show that their employer has failed to protect them from harassment.
Who is likely to be affected?
This change is likely to impact every workforce which is public-facing. However, some key industries which are likely to be affected are the NHS, retail, and the care industry. Sadly, shop workers, doctors, nurses, receptionists, and health workers including carers, are often the target of behaviour related to sex, sexual orientation, race and religion, amongst other protected characteristics, by members of the public whom they are employed to serve.
Currently, these individuals have no claims for harassment to bring against their employer arising from this treatment, however, this will change when the Employment Rights Bill comes into force, after which their employers, including the NHS and care providers, will need to take steps to protect their staff from such harassment or face the increased risk of claims from their employees.
What do employers need to know?
The draft bill does not define how employees will be expected to protect their staff from harassment. It states that liability will arise, however, when employers fail to take reasonable steps to prevent harassment by third parties.
It seems likely, therefore, that employers can reduce the risk of claims by taking steps to protect their staff from harassment, including by security measures, such as CCTV or security staff, or by ensuring they take action to ban repeat offenders.
What can I do about harassment occurring at my place of work?
The changes are very unlikely to apply retrospectively. Harassment which occurs before the bill will have to meet the older requirement in order to be actionable under the Equality Act 2010 – and therefore would have to have been done by an employee or agent of the employer.
If you are an employer facing a complaint of harassment, or if you want to take steps to mitigate the risk of claims in your business, please get in touch with DPH Legal for advice.
Alternatively, if you are experiencing harassment at work, you might be entitled to take legal action. We recommend you seek advice at the earliest opportunity, to understand your rights better.
Need expert advice? Contact DPH Legal today by calling 0118 208 2000 or emailing info@dphlegal.com
