The Equality Act 2010 considers discrimination in respect of specific protected characteristics. In the case of a harassment claim, the relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.
The general definition of harassment is as follows:
A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:
- Violating B’s dignity or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
When considering the effect of the above, B’s perception, the circumstances of the case and whether it would be reasonable to have that effect, is taken into consideration.
A one off incident can amount to harassment and B would not need to make A aware that the conduct was unwanted. There is no need for a comparator. Unwanted conduct can include, but are not limited to, the following examples:
· Spoken words
· Written words
· Posts or contact on social media
· Physical gestures
· Jokes or pranks
Actual dismissal can amount to harassment. However, constructive unfair dismissal cannot. Nevertheless, the employer’s repudiatory acts that might lead to a constructive dismissal claim can constitute harassment. Anything done by an employee in the course of their employment will be treated as having been done by the employer themselves.