If you're being harassed or bullied at work

Harassment is where someone creates an atmosphere that makes you feel uncomfortable - this could be because you feel offended, intimidated or humiliated.

If you’re being bullied, your situation might also be harassment under the Equality Act 2010. If it is, you can take action under that law.

If the bullying isn't harassment under the Equality Act you might be able to deal with the problem another way.

It might be harassment if someone's:

• verbally abused you

• asked very personal questions, for example about your disability or religion

• put up posters that make you feel uncomfortable

• made rude physical gestures or facial expressions towards you

• told you jokes of a sexual nature

• made comments you find offensive, for example on social media

If your colleagues say the behaviour was just friendly banter, it might still be harassment if it meets the definition of harassment in the Equality Act.

If the harassment is very serious, it might also be a crime. For example, it’s a crime if someone has sexually assaulted you or made physical threats. Contact the police if you’re worried about your safety.

Check what's harassment under discrimination law

For all types of harassment, the behaviour you’re complaining about has to be something you didn’t want. The law calls this ‘unwanted conduct’.

You also always need to show that the person who harassed you meant to make you feel a certain way, or that you felt that way even though it wasn’t their intention. This is called ‘purpose or effect’. If the person didn’t mean to make you feel this way, it also has to be 'reasonable’ that you felt that way.

You need to show that the purpose or effect of the conduct was that it violated your dignity or created an environment that:

• humiliates you

• offends you

• intimidates you

• is hostile

• is degrading

You also have to show that your situation is covered by one of the 3 types of harassment in discrimination law.

The first type is where the unwanted conduct is related to a relevant 'protected characteristic' like sex or race. 

The second type is where the unwanted conduct is of a sexual nature.

The third type is where you’re treated worse because of rejecting or submitting to unwanted sexual behaviour or behaviour related to gender reassignment or sex. This is called ‘being treated less favourably’.

It doesn't matter if the behaviour is directed at you or not - for example, if you overhear your colleagues making racist jokes or comments to each other.

Harassment is covered by Section 26 of the Equality Act 2010.

Check if it's related to a 'protected characteristic'

The Equality Act protects you against harassment related to 'protected characteristics' like religion or being disabled.

If your harassment is related to pregnancy or maternity, you should take action under harassment relating to your sex.

The protected characteristics covered in sections 5 to 12 of the Equality Act are:

Age

The law covers you for discrimination about being:

• young or old

• in a particular age group - like 15-18 or under 60

• of a specific age - like 40 year olds

Age is defined in section 5 of the Equality Act 2010.

Disability

You're covered for a disability you have now and any you've now recovered from. A disability could be physical or mental - you could be covered even if you don't consider yourself disabled.

You should check if your disability is covered by the Equality Act.

Disability is defined in section 6 of the Equality Act 2010.

Gender reassignment

The law covers  ‘gender reassignment’ - this means if you’re transgender.

You're covered if you:

• are planning to transition - you don't need to have had any medical treatment

• are in the process of transitioning

• have already transitioned

If you identify as non-binary but you aren’t transitioning, you might be covered but the law is complicated. You’ll need to get specialist advice before you go any further. 

Gender reassignment is defined in section 7 of the Equality Act 2010.

Race

This includes your:

• colour - for example if you're black or white

• nationality

• ethnic origin - for example if you're a Romany Gypsy

• national origin - this could be different from your nationality, for example if your family is from India but you have a British passport

If you’re not sure what race means you can read a more detailed description in the EHRC Code of Practice on Employment, chapter 2. 

Race is defined in section 9 of the Equality Act 2010.

Religion or belief

This includes:

• belonging to an organised religion, for example if you're Jewish

• having a religious belief, for example you need to pray at certain times

• having no religion, such as being an atheist

• your philosophical beliefs, like being a pacifist

Religion or belief is defined in section 10 of the Equality Act 2010.

Sex

This is whether you're a man or a woman.

If you identify as non-binary you might be covered but the law is complicated. You’ll need to get specialist advice before you go any further. 

Sex is defined in section 11 of the Equality Act 2010.

Sexual orientation

You’re covered if you’re gay, a lesbian, straight or bisexual. 

Sexual orientation is defined in section 12 of the Equality Act 2010.

Check if your employer is responsible for the harassment

You can only take legal action about harassment if you are a worker protected by the Equality Act 2010.

You don't have to have a written contract for your employer to be responsible for discrimination against you. You’re covered by the law if you’re:

• an employee

• an apprentice

• working under an agreement with them that you’ll personally do work and they’ll pay you for it

• a former employee

This includes casual and zero hours workers and some self-employed people and freelancers.

There are extra rules to protect people who are employed by one business but work for another, such as agency workers.

If your contract says you can send someone else to do the work

You might still be protected if you don’t have complete freedom to send someone else to do the work in your place. You’d have to argue that the term in your contract doesn’t reflect your real work situation.

Example

Carol works for a car valeting company based at an airport. She has a written contract which says she’s self-employed and can send another person to do her job if she doesn’t want to go into work.

In reality, workers need security clearance to work at the airport and it’s unlikely they’d let her bring in whoever she wants to do the work. She’s also told when to work, has to use the company’s cleaning products and wear their uniform.

Because Carol doesn’t send someone to do the work in her place, and works under the authority of the valeting company she’ll be protected under the Equality Act 2010.

If you’re paid by one company but work at another - agency workers and contract workers

If you’re an agency or contract worker you can complain to either the company that employs and pays you or the place you actually work (called the ‘Principal’ in the law). You could also complain to both - it depends who’s actually responsible for the discrimination.

Example

Paola is employed by an agency which has found her work at a local factory packing boxes. When she tells the manager at the factory she’s pregnant he tells her to go home because they need to talk to the agency to make sure the work is safe for her.

The agency calls her later that day and tells her the factory don’t want her to work there any more. The agency say they’ll try to find her other work but she hears nothing from them. Paola could take action against both the factory and the agency if the reason they’ve stopped giving her work is because she’s pregnant.

Contract and agency workers are protected from discrimination under section 41 of the Equality Act 2010.

Check if you’re a worker who’s protected in another way

Some types of workers are protected from discrimination even though they don’t normally have employment rights, for example:

• police officers

• office holders

• members of Limited Liability Partnerships

• barristers and advocates

You can read more about these situations in Chapter 11 of the EHRC Code of Practice on Employment.

People who won’t be covered

There are some groups of people who aren’t covered by the Equality Act 2010.

Volunteers

You won’t be able to take action about discrimination at work if you’re a volunteer.

People working illegally

The two most common situations in which you might be working illegally are:

• where you don’t have the right to work in the UK

• you’re working in a situation where you’ve agreed with your employer to avoid paying income tax and national insurance

This can affect your ability to make a legal claim about discrimination but you should get specialist advice. 

If you’re genuinely self-employed

You won’t be covered by discrimination law if you are genuinely self-employed. This means that you have a contract to work but you can send a substitute, are in control and can run your own business in order to make a profit. For example you’re probably self-employed if you can charge more for the work you do.

If you’re harassed by a colleague

Your employer is responsible for any harassment done by any of your colleagues if the discrimination happens to you at:

• work 

• work-related events or business trips - like an office away day

• social events organised by them - like an office Christmas party or a work-related dinner

If a colleague is harassing you, they and your employer are both responsible. The name in the law for your employer’s responsibility is ‘vicarious liability’. This is covered in section 109 and section 110 of the Equality Act 2010.

You can’t usually take action against your employer if you’ve been discriminated against by customers or staff from other companies. However, they still have a duty to protect you from discrimination if they know it’s happening.

They might also be responsible if the discrimination was done by someone they gave authority to, for example a consultant who made redundancies for them. The law calls this person an ‘agent’.

If you’re not sure whether your employer should have done more to protect you, you can get help from an adviser.

Your employer is responsible for the discrimination even if they didn’t know about it or approve of it.

Your employer might be able to argue they’re not responsible for the harassment by a colleague if they can show they did everything they reasonably could to prevent it happening.

It’s not enough for your employer to have an equal opportunities policy - they’ll need to show they couldn’t have reasonably done anything more.

Example

Jonathan is being sexually harassed by his manager. He complained to the human resources team but they haven't done anything about it.

Jonathan’s company has a policy against sexual harassment. They give all new managers training about it and tell them anybody who breaks the rules will be disciplined. However, Jonathan knows some of his colleagues have also complained about sexual harassment in his office and nothing has been done about it.

In this situation, the employer has taken steps to stop managers from harassing other colleagues at work. But they’ve ignored several complaints and they don’t have a policy for investigating them, so they probably couldn’t say they’ve taken all reasonable steps to prevent harassment.

Jonathan could take action against his employer. They’ll be responsible for the harassment because it happened in work and they didn’t do enough to prevent it. He could also take action against his manager because they’re personally responsible too. 

Who to take action against

Usually it’s better to take action against your employer rather than the colleague who harassed you. This is because when you take action against someone, you might have to deal with letters or phone calls from them - this can be upsetting. They might also find out personal details about you as part of the case, for example your address or medical history. You might feel uncomfortable about someone who's harassed you having this information.

If you take action against your employer, you'll probably be dealing with someone from the HR department or a lawyer instead.

It might be better to take action against both of them if you think:

• your employer will be able to argue they’re not responsible for your colleague’s behaviour

• your employer could shut down or stop trading to avoid you taking action

You should always get help from an adviser before you decide to take action against a colleague.

If the person who discriminated was told to or helped by someone else

The person who gave the orders could be responsible as well as the person who actually discriminated against you. For example if one of the directors of your company tells the HR team not to hire anyone over 50, the director and the HR staff could both be responsible.

The legal name for ordering someone else to discriminate is ‘instructing, causing or inducing discrimination’. The legal name for helping someone else to discriminate is ‘aiding discrimination’.

This is covered in section 111 and section 112 of the Equality Act 2010.

You can find out more in Chapter 9 of the EHRC Code of Practice on Employment.

If you’re protected by the Equality Act

Your next step is to decide what to do about discrimination at work.

The harassment might also count as a ‘hate crime’ - check if you can report a hate crime to the police.

If you aren't protected by the Equality Act

There are still things you can do to make the harassment stop. You can:

• try to solve the problem by talking to your employer

• check if you can take action using different harassment laws

Further help

Scottish Women's Rights Centre 

The Scottish Women's Rights Centre can provide free information and advice to women who are affected by sexual harassment in the workplace. Check how to contact the Scottish Women's Rights Centre helpline on their website.