The Equality Act 2010 - Victimisation and harassment

Learning Outcomes

This article explains the statutory definitions of victimisation (s27 Equality Act 2010) and harassment (s26), the elements that must be proved for each, and the three forms of harassment recognised by the Act. It examines the role of protected acts, detriment, unwanted conduct, and the “related to a protected characteristic” requirement, distinguishing clearly between victimisation and the different types of harassment, including sexual harassment and less favourable treatment following rejection of such conduct. It explores causation and the “purpose or effect” test, showing how tribunals assess the claimant’s perception, the surrounding circumstances, and reasonableness. It analyzes how burden of proof (s136) and vicarious liability (s109) operate in employment and services claims, including the reasonable steps defence. It reviews where claims are brought, typical limitation periods, and the main remedies, including compensation for injury to feelings. It applies these principles to realistic workplace and services scenarios, including post‑employment conduct and third‑party risks, and highlights common exam pitfalls such as bad‑faith allegations, the exclusions for pregnancy/maternity and marriage/civil partnership, and the absence of any justification defence to victimisation.

SQE1 Syllabus

For SQE1, you are required to understand the Equality Act 2010’s provisions on prohibited conduct, including victimisation and harassment, with a focus on the following syllabus points:

• define and distinguish victimisation and harassment under the Act
• identify the elements required to establish each type of prohibited conduct
• apply these concepts to practical scenarios involving protected characteristics
• explain the significance of protected acts, detriment, and unwanted conduct
• recognise the scope of protection for clients, employees, and service users
• understand how burden of proof (s136) and vicarious liability (s109) operate
• identify the usual forum and time limits and available remedies.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is a "protected act" for the purposes of victimisation under the Equality Act 2010?
2. Which protected characteristics are excluded from the harassment provisions of the Act?
3. True or false? A person must have a protected characteristic to be protected from victimisation.
4. What must be shown to establish harassment under the Equality Act 2010?

Introduction

The Equality Act 2010 prohibits various forms of discrimination, including victimisation and harassment. These are distinct types of prohibited conduct that protect individuals in the workplace and when accessing services. For SQE1, you must be able to define these concepts, identify their elements, and apply them to realistic scenarios. Claims commonly arise in employment (Part 5) and services/public functions (Part 3), and the statutory frameworks for liability, proof, and remedies apply across contexts.

Key Term: victimisation
Victimisation is treating someone unfavourably because they have done, or are believed to have done (or may do), a protected act under the Equality Act 2010 (s27).

Key Term: protected act
A protected act includes bringing proceedings under the Act, giving evidence or information in connection with proceedings, doing anything related to the Act, or making an allegation that someone has contravened the Act (s27(2)).

Key Term: detriment
Detriment means any disadvantage or unfavourable treatment that a reasonable person would view as such in the circumstances; it need not be financial.

Key Term: harassment
Harassment is unwanted conduct related to a protected characteristic that has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment (s26).

Key Term: unwanted conduct
Unwanted conduct is any behaviour the recipient does not welcome, whether verbal, non-verbal, or physical.

Key Term: related to a protected characteristic
“Related to” covers conduct that is linked to a characteristic (e.g., race or religion), even if the claimant does not possess the characteristic; it includes association and perception.

Key Term: purpose or effect
Under s26, harassment can be proved by showing the conduct’s purpose or its effect; the tribunal considers the claimant’s perception, the circumstances, and whether it is reasonable for the conduct to have that effect.

Victimisation under the Equality Act 2010

Victimisation occurs when a person is subjected to a detriment because they have done, or are believed to have done (or may do), a protected act (s27).

Key Term: burden of proof
In discrimination claims, once facts are proved from which the tribunal could conclude victimisation or harassment occurred, the burden shifts to the respondent to prove they did not act unlawfully (s136).

Elements of Victimisation

To establish victimisation, the following must be shown:

• The claimant did a protected act (or the respondent believed they did or may do so).
• The respondent subjected the claimant to a detriment.
• The detriment was because of the protected act.

A person does not need to have a protected characteristic to be protected from victimisation. Protection typically applies even if the allegation later proves to be false; however, protection does not apply where the respondent shows the protected act was done in bad faith (limited exception under s27).

Victimisation can occur during employment and post‑employment (e.g., refusal to provide a reference), and in services (e.g., refusing to serve or imposing harsher terms because a complaint was made under the Act).

Key Term: vicarious liability
Employers are liable for acts of their employees done in the course of employment, unless they can show they took all reasonable steps to prevent the conduct (s109).

Worked Example 1.1

Priya gives evidence in a colleague’s discrimination case against their employer. Afterwards, Priya is excluded from team meetings. Has she been victimised under the Equality Act 2010?

Answer:
Yes. Priya did a protected act (giving evidence in proceedings under the Act) and was subjected to a detriment (exclusion from meetings) because of it.

Worked Example 1.2

Ethan makes an allegation that his department head has breached the Equality Act. The allegation is later shown to be incorrect. Ethan acted honestly and believed the allegation was true. The department head denies him training because of the allegation. Is victimisation made out?

Answer:
Yes. An allegation can be a protected act even if incorrect, provided it was not made in bad faith. Denying training because of the allegation is a detriment linked to the protected act.

Worked Example 1.3

After leaving a company, Zara asks HR for a standard confirmation-of-employment reference. HR declines, saying she is “a troublemaker” because she previously lodged a discrimination grievance. Can she claim victimisation?

Answer:
Yes. Refusing a reference post-employment because of a protected act is victimisation. The Equality Act covers post-employment conduct connected with the employment relationship.

Harassment under the Equality Act 2010

Harassment is unwanted conduct related to a relevant protected characteristic that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment (s26).

Key Term: reasonable steps defence
For employer liability, s109 provides a defence if the employer took all reasonable steps to prevent employees from harassing or victimising others.

Relevant Protected Characteristics

Harassment provisions apply to all protected characteristics except marriage and civil partnership, and pregnancy and maternity (s26(5)). Conduct linked to those statuses may still amount to sex discrimination or sexual harassment if the facts fit those definitions.

Elements of Harassment

To establish harassment, the following must be shown:

• There was unwanted conduct.
• The conduct was related to a relevant protected characteristic.
• The conduct had the purpose or effect of violating dignity or creating an adverse environment.

Both the perception of the victim and whether it is reasonable for the conduct to have that effect are considered (s26(4)). A single incident can suffice. Conduct can be “related to” even if not aimed directly at the claimant (e.g., racist comments in a team chat that the claimant reads).

Worked Example 1.4

Samira, an employee, is repeatedly mocked by colleagues about her accent and religion. She finds the comments humiliating and distressing. Does this amount to harassment?

Answer:
Yes. The conduct was unwanted, related to her religion (a protected characteristic), and had the effect of violating her dignity and creating a hostile environment.

Types of Harassment

The Act recognises three types:

1. Harassment related to a protected characteristic (as above).
2. Sexual harassment—unwanted conduct of a sexual nature (s26(2)).
3. Less favourable treatment because of submission to or rejection of sexual harassment (s26(3)).

Worked Example 1.5

Alex is subjected to repeated sexual jokes by a manager. When Alex complains, the manager stops inviting Alex to important meetings. What claims may Alex have?

Answer:
Alex may claim sexual harassment (unwanted sexual conduct) and less favourable treatment because of rejecting that conduct.

Worked Example 1.6

Lina attends a client dinner where a senior partner makes a single “joke” implying women of her ethnicity are unsuited to leadership. She is visibly upset and reports the incident. Could this be harassment?

Answer:
Yes. A single incident can amount to harassment if it has the effect described in s26. The conduct was unwanted, related to race/ethnic origins, and reasonably capable of violating Lina’s dignity.

Application and Remedies

Victimisation and harassment are prohibited in employment, service provision, and other contexts covered by the Act. The key procedural and remedial features below are frequently examined and important in practice.

Key Term: forum and time limits
Employment claims are brought in the Employment Tribunal, usually within three months less one day of the act complained of (subject to ACAS Early Conciliation). Services claims are brought in the county court within six months less one day (s118 and Part 3).

Key Term: remedies
Tribunals and courts can award compensation for financial loss, injury to feelings, personal injury, and aggravated damages; they can also make declarations and recommendations. There is no upper limit on compensation in Equality Act claims.

Key Term: injury to feelings
Compensation for injury to feelings is assessed using guideline Vento bands; the appropriate band depends on the seriousness and duration of the conduct.

Employers and service providers are vicariously liable for acts of staff carried out in the course of employment or providing services (s109). A statutory defence is available if they took all reasonable steps to prevent the unlawful conduct (e.g., robust policies, training, swift disciplinary measures, effective reporting channels). There is no “justification” defence to victimisation, and harassment liability turns on the statutory test of purpose/effect and reasonableness.

Burden of proof is split: once the claimant proves facts from which an inference of unlawful conduct could be drawn, the burden shifts to the respondent to prove there was no breach (s136). Contemporaneous evidence (emails, messages, witness statements) is often decisive.

Practical enforcement has evolved. Although “third‑party harassment” was removed as a standalone statutory claim, employers must still address harassment risks posed by third parties. Separately, a new duty (in force from October 2024) requires employers to take reasonable steps to prevent sexual harassment of employees by third parties; where breached, tribunals may uplift compensation by up to 25% in sexual harassment cases to reflect non‑compliance with that duty.

Typical procedure points

• Early Conciliation with ACAS pauses limitation in employment claims.
• Discriminatory policies can be challenged on their face; discriminatory “one-off” decisions also give rise to claims.
• Post‑employment victimisation (e.g., refusing a reference) is actionable where connected to the employment relationship.

Exam Warning

For SQE1, remember that a person does not need a protected characteristic to be protected from victimisation. Also, harassment does not require intent—effect is sufficient if it is reasonable. In employment, consider s109 vicarious liability and the “reasonable steps” defence; in all claims, apply s136 burden of proof and identify the correct forum and time limit.

Revision Tip

When answering SQE1 questions, carefully identify whether the facts show a protected act, detriment, unwanted conduct, and a link to a protected characteristic. Then check the forum, time limit, and whether vicarious liability and/or a reasonable steps defence are in play.

Key Point Checklist

This article has covered the following key knowledge points:

• Victimisation and harassment are distinct forms of prohibited conduct under the Equality Act 2010 (ss27 and 26).
• Victimisation requires a protected act, detriment, and a causal link; protection is lost only where the protected act was done in bad faith.
• Harassment requires unwanted conduct related to a protected characteristic and an adverse effect on dignity or environment; a single incident can suffice.
• Harassment does not require intent; the tribunal applies the s26(4) factors to judge reasonableness of the effect.
• Liability can arise even if the claimant does not possess the characteristic (association/perception).
• Employers are vicariously liable (s109) unless they prove the reasonable steps defence; burden of proof follows s136.
• Typical forums and time limits: Employment Tribunal (three months less one day, with Early Conciliation), county court for services (six months less one day).
• Remedies include compensation (including injury to feelings per Vento), aggravated damages, declarations, and recommendations.
• Post‑employment victimisation (e.g., references) is actionable.
• From October 2024, a separate duty requires employers to take reasonable steps to prevent sexual harassment by third parties; breaches can attract compensation uplifts.

Key Terms and Concepts

• victimisation
• protected act
• detriment
• harassment
• unwanted conduct
• related to a protected characteristic
• purpose or effect
• burden of proof
• vicarious liability
• reasonable steps defence
• forum and time limits
• remedies
• injury to feelings