Equality Act 2010, section 26

Harassment

Part 2 Equality: key concepts

(1)A person (A) harasses another (B) if—

(a)A engages in unwanted conduct related to a relevant protected characteristic, and

(b)the conduct has the purpose or effect of—

(i)violating B's dignity, or

(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2)A also harasses B if—

(a)A engages in unwanted conduct of a sexual nature, and

(b)the conduct has the purpose or effect referred to in subsection (1)(b).

(3)A also harasses B if—

(a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,

(b)the conduct has the purpose or effect referred to in subsection (1)(b), and

(c)because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—

(a)the perception of B;

(b)the other circumstances of the case;

(c)whether it is reasonable for the conduct to have that effect.

(5)The relevant protected characteristics are—

  • age;

  • disability;

  • gender reassignment;

  • race;

  • religion or belief;

  • sex;

  • sexual orientation.

Cases considering section 26 131

For Women Scotland Ltd v The Scottish Ministers

[2025] UKSC 16 · 16 April 2025Interprets

Harassment requires unwanted conduct related to a protected characteristic with the prescribed purpose or effect. The complainant need not possess that characteristic, so trans people remain protected under a biological-sex construction. (see paras [254]-[256])

R v Secretary of State for Work and Pensions

[2017] UKSC 72 · 1 November 2017Limits

A policy-level judicial review could not sensibly determine an unpleaded, fact-specific harassment allegation. Particular incidents would require a substantive claim supported by specific evidence (see para [45]). The policies did not have the purpose of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. They were designed to achieve the reverse effect (see para [45]).

Sandhu v Enterprise Rent-A-Car Ltd

[2025] EWCA Civ 190 · 3 March 2025Interprets

The court applied the statutory definition of harassment and held that the tribunal was entitled to find that the two incidents did not meet it, taking account of context, knowledge and triviality. (see paras [56]-[58]; [99]-[103]) The court confirmed that harassment requires unwanted conduct related to disability which has the prohibited purpose or effect, assessed in context. The tribunal was entitled to conclude that the incidents did not satisfy that definition. (see paras [56]-[58]; [99]-[103]) The court confirmed that the prohibited-effect requirement is a distinct evaluative control and that trivial conduct should not be treated as harassment merely because it caused upset. (see paras [56]-[58]; [101]-[103]) The court confirmed that the statutory prohibited-effect alternatives form part of the assessment of harassment and that the tribunal was entitled to find the incidents insufficient in context. (see paras [56]-[58]; [101]-[103])

111 more judgments, and what each says about section 26, are in the case-law panel in the full Act.

Explanatory note

98.This section defines what is meant by harassment for the purposes of the Act. There are three types of harassment. The first type, which applies to all the protected characteristics apart from pregnancy and maternity, and marriage and civil partnership, involves unwanted conduct which is related to a relevant characteristic and has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or of violating the complainant’s dignity. The second type is sexual harassment which is unwanted conduct of a sexual nature where this has the same purpose or effect as the first type of harassment. The third type is treating someone less favourably because he or she has either submitted to or rejected sexual harassment, or harassment related to sex or gender reassignment.

99.Previous legislation provided freestanding protection against harassment, but the first type of harassment described above was not defined in the same way for all the different protected characteristics to which it applied. In determining the effect of the unwanted conduct, courts and tribunals will continue to be required to balance competing rights on the facts of a particular case. For example, this could include balancing the rights of freedom of expression (as set out in Article 10 of the European Convention on Human Rights) and of academic freedom against the right not to be offended in deciding whether a person has been harassed.

All the explanatory notes for the Act