Under the Equality Act 2010, can an employee bring a claim for harassment where the unwanted conduct is not directed at him or her?
Yes. Section 26 of the Equality Act 2010 defines harassment as 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 for that person.
This means that an employee can make a complaint of harassment where he or she is offended by behaviour even if it is not directed at him or her. The employee does not need to possess the relevant protected characteristic. For example, a non-Muslim employee (A) who witnesses a colleague (B) teasing another colleague (C) about C's Muslim faith, and is offended by the harassment that is directed at C, can bring a complaint of harassment. However, A will succeed with the claim only if, having regard to all the circumstances including A's perception, the conduct should reasonably be considered as having the effect of violating A's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for A.