What employers need to know about preventing harassment

With new rules surrounding harassment coming into force on the 26 October, employers must understand their liabilities to prevent harassment from occurring in their workplace.   

What defines harassment? 

Harassment is a specific form of discrimination that goes beyond ‘bullying’. Under the Equality Act 2010, harassment has a broad definition that covers all workers, potential job applicants, volunteers and former employees.  

Under the Equality Act 2010, harassment counts as: 

• ‘Unwanted conduct relating to a protected characteristic where  
• the conduct violates the employee’s dignity, and creates an intimidating, hostile, degrading, humiliating or offensive environment’.  

While the term ‘harassment’ usually gives connotations of repeat behavior, a one-off incident is enough to amount to harassment. Even if the motives are considered light-hearted or banterous, the motive of the harasser is not relevant if the actions have been deemed degrading by the recipient.  

Clarifying harassment claims 

Unwanted conduct

Anything aimed at an employee that is unwelcome or uninvited classifies as ‘unwanted conduct’ and could be interpreted as harassment. A recipient doesn’t need to explicitly object to conduct for it to be considered unwanted.  

Examples of unwanted conduct include:  

• Spoken words 

• Written words 

• Banter or pranks 

• Social media posts 

• Physical gestures or facial expressions 

• Imagery/graffiti 

• Mimicry 

• Aggression. 

Sexual harassment 

Sexual harassment holds a special status within employment law, defined as ‘unwanted conduct of a sexual nature’. With the passing of the Worker Protection Act 2023 (amendment of the Equality Act 2010), employees who successfully demonstrate instances of sexual harassment could be awarded an additional 25% uplift on any offered compensation at tribunal.  

The Worker Protection Act also grants additional powers to the Equality and Human Rights Commission (EHRC) to investigate employers, deliver unlawful act notices and provide unlimited fines on employers that fail to put strong protective measures in place.  

It’s vital that employers have adequate policies in place, not just to protect the wellbeing of employees, but to prevent considerable financial and reputational damage to their organisation. 

Third party harassment

Third-party harassment refers to harassment of staff by individuals not employed by the company, such as customers or clients. In education, this also extends to pupils.  

While there isn’t currently express protection under the Equality Act, the EHRC can impose fines or sanctions if employers fail to take steps to protect workers. With potential legislation from the government hinting at third-party harassment, we recommend that schools and trusts proactively prepare by reviewing policies and communicating them clearly with staff. 

Announced on 10 October, the Employment Rights Bill introduces enhanced responsibilities for employers to protect employees from third-party harassment. Should the bill pass without any amendment, it will likely create an obligation for employers to have anti-harassment measures in place by 2026; however, we recommend reviewing them as early as possible.  

Protecting your organisation and employees 

No employee should be subject to harassment in the workplace. Employers should have firm policies that benefit their workplace culture and protect them from the legal implications of failing to comply.  

Employers must be able to demonstrate that they took ‘all reasonable steps’ to prevent harassment before an alleged case took place. If a tribunal can identify a step that has been disregarded or not considered, then they could be liable for the harassment that the employee has suffered.  

You can find further information on reasonable steps employers can take in our blog: 'Employer steps to protect against sexual harassment'. 

Ensuring staff are fully trained is key to avoiding liability. If employers could have done something to prevent harassment but didn’t, they could face significant financial penalties. If you’re an EPM customer looking to avoid unnecessary risks, contact your People Adviser for further guidance.  

While new legislative measures may seem daunting, new duties for employers present an opportunity to make proactive changes in their organisation, creating a harmonious working environment where staff feel secure and comfortable.  

If you’re looking to understand your responsibilities and duties as an employer under discrimination and equality, or would like to learn more about our model policies and letters, along with relevant training, please talk to us.