Defining discrimination, bullying, and harassment in the workplace
Creating a fair and inclusive workplace requires a clear understanding of discrimination, bullying, and harassment. These behaviours can have significant legal, financial, and reputational consequences for employers while also affecting employees’ well-being and productivity. The Equality Act 2010 provides the legal framework for addressing discrimination and harassment in the UK workplace, making it essential for employers to recognise their responsibilities and take proactive measures.
Workplace discrimination
Legal definition and framework
Discrimination in the workplace occurs when an individual is treated less favourably due to a protected characteristic, as defined under the Equality Act 2010. These characteristics include:
Age
Disability
Gender reassignment
Marriage and civil partnership
Pregnancy and maternity
Race
Religion or belief
Sex
Sexual orientation
Types of discrimination
Direct discrimination
This occurs when an individual is treated unfairly due to a protected characteristic. Examples include:
Not hiring someone because of their race
Refusing to promote an employee due to their gender
Treating someone unfairly based on perceived characteristics
Indirect discrimination
Policies or practices that apply to all employees but disadvantage those with a protected characteristic. For instance:
A company requiring all employees to work Saturdays, indirectly disadvantaging Jewish employees who observe the Sabbath.
A dress code that disproportionately affects people of certain religious beliefs.
Harassment
Unwanted conduct related to a protected characteristic that violates an individual’s dignity or creates an intimidating, hostile, degrading, or offensive environment. Examples include:
Verbal abuse and offensive jokes
Unwanted physical contact
Making derogatory comments about someone’s religion or gender identity
Victimisation
Occurs when an employee is treated unfairly because they have made or supported a discrimination complaint. For example, being denied a promotion after filing a grievance about discrimination.
Employer responsibilities
Employers must implement anti-discrimination policies, provide training, and establish clear complaint procedures. Failure to address discrimination can result in legal liability under the Equality Act 2010.
Workplace bullying
Understanding workplace bullying
Workplace bullying is repeated, unreasonable behaviour directed at an employee that creates a risk to their well-being. Unlike harassment, bullying is not specifically covered by the Equality Act 2010, but it can have serious implications if it overlaps with unlawful discrimination.
Forms of workplace bullying
Verbal bullying – Insults, persistent criticism, or offensive jokes.
Emotional bullying – Exclusion from workplace activities or isolation.
Sabotage – Withholding necessary information or deliberately undermining someone’s authority.
Cyberbullying – Online harassment, including harmful emails or social media posts.
Micromanagement – Excessive scrutiny and unreasonable control over an employee’s work.
Physical bullying – Threats, intimidation, or damage to personal property.
Recognising and addressing bullying
Indicators of workplace bullying include increased absenteeism, declining performance, and frequent complaints about workplace behaviour. Employers should establish grievance procedures, encourage open communication, and provide support systems such as counselling or mediation.
Workplace harassment
Definition and legal context
Harassment, as defined under the Equality Act 2010, is unwanted conduct related to a protected characteristic that creates an intimidating, hostile, or offensive environment. Harassment can occur between colleagues, managers, or even third parties like clients or customers.
Types of harassment
Sexual Harassment – Unwanted sexual advances, inappropriate jokes, or suggestive comments.
Characteristic-Related Harassment – Derogatory remarks about race, gender, or disability.
Third-Party Harassment – Harassment by external individuals, such as customers or suppliers.
Employer responsibilities and legal developments
The Worker Protection (Amendment of Equality Act 2010) Act (2024) places a proactive duty on employers to prevent sexual harassment. Failure to address harassment can result in tribunal claims and significant financial penalties.
Employers should:
Develop clear anti-harassment policies
Provide regular training for employees and managers
Establish confidential reporting mechanisms
Conduct prompt and fair investigations
Stereotyping and microaggressions in the workplace
Understanding microaggressions
Microaggressions are subtle, often unintentional behaviours that convey bias or insensitivity. These can include:
Microassaults – Direct discriminatory remarks or actions.
Microinsults – Subtle comments that convey rudeness or insensitivity.
Microinvalidations – Dismissing or minimizing someone’s experiences.
Impact on workplace culture
Employees who experience stereotyping and microaggressions often feel alienated, leading to lower productivity, higher turnover, and mental health issues.
Preventing microaggressions
Employers should:
Provide diversity and inclusion training
Encourage open conversations about bias
Promote bystander intervention
Implement clear policies against discriminatory behaviours
When bullying might constitute harassment
Key distinctions
While bullying itself is not unlawful, it becomes harassment when the behaviour is related to a protected characteristic under the Equality Act 2010. For example:
A manager repeatedly targeting an employee based on their race.
A colleague making offensive jokes about someone’s gender identity.
Legal Implications and Employer Responsibilities
Employers must take reasonable steps to prevent and address workplace harassment. This includes:
Developing anti-bullying and harassment policies
Providing training on workplace behaviour
Encouraging employees to report concerns
Conducting thorough investigations
Implementing disciplinary actions where necessary
Employer liability for discrimination, bullying, or harassment in the workplace
Understanding employer liability
In the UK, employer liability for discrimination, bullying, or harassment in the workplace is a critical issue governed by several legal frameworks, including the Equality Act 2010 and the Protection from Harassment Act 1997. Employers can be held liable for discriminatory acts committed by their employees during the course of employment under section 109 of the Equality Act 2010, known as vicarious liability. This liability extends to acts of bullying and harassment, which, although not specifically defined in law, can lead to claims if they relate to a protected characteristic such as age, disability, gender reassignment, race, religion or belief, sex, or sexual orientation.
Vicarious liability and reasonable steps defence
Employers are generally liable for the actions of their employees, but they can defend themselves against claims of discriminatory harassment if they can demonstrate that they took all reasonable steps to prevent such acts. This includes having robust anti-harassment and bullying policies, providing regular training to staff, and ensuring that these policies are actively implemented and enforced. The recent updates in the law, effective from 26 October 2024, have introduced a duty for employers to take reasonable steps to prevent sexual harassment, which applies to harassment by both colleagues and third parties.
Personal liability of employees
Employees can also be held personally liable for their own acts of discrimination under section 110 of the Equality Act 2010. This means that both the employer and the individual who committed the discriminatory act can be respondents in a discrimination claim. The case of Baldwin v Cleves School highlighted that individual employees could not escape liability if the conditions of section 110 are satisfied, reinforcing the importance of personal accountability in the workplace.
Reporting discrimination, bullying, or harassment in the workplace
Understanding the reporting process
Employees in the UK have multiple avenues to report workplace discrimination, bullying, or harassment. A structured and transparent reporting process ensures that complaints are handled fairly, confidentially, and in line with legal obligations. Employers must create a safe and supportive environment where employees feel confident to raise concerns without fear of retaliation.
Understanding the nature of complaints
Discrimination, bullying, and harassment
Discrimination occurs when someone is treated less favourably due to a protected characteristic under the Equality Act 2010, such as age, sex, race, or disability.
Bullying is characterised by offensive, intimidating, malicious, or insulting behaviour that undermines, humiliates, or injures the recipient.
Harassment is unwanted conduct related to a protected characteristic that violates a person’s dignity or creates a hostile work environment.
Initial steps for employees
Informal resolution
Employees should initially consider addressing concerns informally by speaking with the individual responsible. If this is ineffective or inappropriate, they should escalate the matter to their line manager or HR. Keeping a record of incidents, including dates, times, and witnesses, is crucial in supporting their case.
Formal reporting procedures
If informal resolution does not work, employees can file a formal complaint using the employer’s grievance procedure. A written complaint should detail the incidents and the desired outcome. Employers must then conduct a thorough and impartial investigation, ensuring confidentiality and transparency throughout the process.
Handling reports of discrimination, bullying, or harassment
Legal responsibilities
Employers must adhere to the Equality Act 2010, which mandates protections against workplace discrimination, harassment, and victimisation. They are vicariously liable for discriminatory acts committed by employees unless they can demonstrate reasonable preventative measures.
Conducting a fair investigation
A structured investigation should:
Be led by a neutral party, preferably an external investigator if conflicts exist.
Gather relevant evidence, including emails, witness statements, and CCTV footage.
Maintain strict confidentiality to protect all involved parties.
Ensure fairness by allowing both the complainant and accused to present their case.
Supporting employees
Employers must offer support to both the complainant and any witnesses. This can include access to:
Employee Assistance Programs (EAPs)
Counselling services
Trade union representatives
Mediation options
Record keeping of discrimination, bullying, or harassment incidents
Why record-keeping matters
Maintaining records is essential for legal compliance, internal investigations, and identifying workplace trends. Documentation helps protect employers and employees should legal action arise.
Types of records to maintain
Incident reports: Dates, times, individuals involved, and a description of events.
Witness statements: First-hand accounts from colleagues who observed the incident.
Correspondence: E-mails, HR reports, and meeting notes.
Investigation records: Steps taken, findings, and final conclusions.
Follow-up actions: Training sessions, disciplinary actions, and mediation outcomes.
Legal implications
Under the Equality Act 2010, employers must take reasonable steps to prevent discrimination and harassment. Failure to maintain records could weaken their defence in tribunal cases.
Best practices for record keeping
Confidentiality: Restrict access to records to only those handling the case.
Consistency: Use standardised forms and procedures.
Regular review: Monitor reports to identify systemic workplace issues.
Retention policy: Store records for an appropriate period and dispose of them securely.
Managing an employee resigning due to discrimination, bullying, or harassment
Employer response to a resignation
If an employee resigns due to discrimination, bullying, or harassment, the employer must:
Acknowledge the resignation promptly.
Offer emotional and professional support, such as access to an EAP.
Investigate the underlying allegations, even if the employee has already left.
Conducting an investigation post-resignation
Employers should still:
Gather evidence, interview witnesses, and review documents.
Ensure confidentiality and fairness throughout the process.
Take appropriate disciplinary action if necessary.
Legal considerations and potential claims
Constructive dismissal: If an employee resigns due to their employer’s failure to address discrimination, they may file a constructive dismissal claim.
Discrimination claims: Employees may also file claims under the Equality Act 2010 if their resignation was linked to discrimination.
Vicarious liability: Employers are responsible for preventing harassment and can be held accountable for failing to take action.
Preventative measures
Employers should:
Develop clear policies and procedures on discrimination, bullying, and harassment.
Provide regular training for employees and management.
Encourage open communication and multiple reporting channels.
Ensure leadership commitment to workplace fairness and respect.
