Can one turn conduct into harassment based on claimant perception?

If someone feels harassed at work, is that enough to make the conduct unlawful harassment under the Equality Act 2010? This article recaps the legal test and looks at a case in which the Employment Appeal Tribunal considered exactly that question.

A recap on harassment

Under section 26(1) of the Equality Act 2010, harassment is unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating a person’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

If the conduct had that purpose, it is harassment. If it was not intended but is said to have had that effect, the tribunal must take into account:

• the perception of the person who says they were harassed
• the other circumstances of the case
• whether it is reasonable for the conduct to have had that effect

The test therefore has both a subjective and an objective element. The tribunal looks at how the person actually felt, and relevant circumstances can include their health, their cultural background and the setting in which the conduct took place.

It then asks whether it was reasonable for the conduct to have that effect. Where the person has been unreasonably sensitive and the conduct was not intended to cause offence, it is unlikely to amount to harassment.

Which protected characteristics are covered?

The relevant protected characteristics for harassment are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. Pregnancy and maternity, and marriage and civil partnership, are not covered by the harassment provisions, although unwanted conduct related to pregnancy or maternity may amount to harassment related to sex.

The Act also covers sexual harassment, meaning unwanted conduct of a sexual nature, which we discuss in our article on why sexual harassment does not always have to be sexual in nature.

Is a claimant’s perception enough? Ali v Heathrow Express

The Employment Appeal Tribunal looked at this in Ali v Heathrow Express Operating Company Ltd and Redline Assured Security Ltd (2022). Mr Ali, a Muslim, worked as a security officer on the Heathrow Express. Redline was engaged to carry out security tests, which sometimes involved planting suspicious items to see how staff dealt with them.

One test used a bag containing a box, electrical wiring and a note reading “Allahu Akbar” in Arabic. Mr Ali later saw images of the bag and note when the results of the test were circulated. He claimed that the test amounted to harassment related to religion, and that Heathrow Express was liable for the actions of Redline as its agent.

The employment tribunal rejected the claim. It found that the phrase had been used because of its association with high-profile terrorist attacks earlier that year, including the Westminster Bridge, Manchester Arena and London Bridge attacks, and that it was chosen to make the package obviously suspicious, not to link Islam with terrorism. The tribunal found that it was not reasonable for the conduct to have the effect Mr Ali described.

Mr Ali appealed, arguing that the decision was perverse or not adequately reasoned. The Employment Appeal Tribunal dismissed the appeal. It said that a claimant’s perception is only one of the factors a tribunal must consider, and that the employment tribunal had been entitled to conclude that the conduct was not harassment.

Key takeaways

The facts of this case were unusual, but it is a useful reminder that the harassment test has subjective and objective parts. A tribunal will consider how the person felt and the wider circumstances, and will ask whether it was reasonable for the conduct to have that effect.

It is also a reminder to employers that they can be liable for harassment by their employees in the course of employment, and by their agents acting with their authority, whether or not they knew about or approved of it. Where an employee is the harasser, the employer has a defence if it took all reasonable steps to prevent the harassment.

Employers already have a duty to take reasonable steps to prevent sexual harassment, and from October 2026 they must take all reasonable steps to prevent it and must not permit harassment of their staff by third parties such as customers or clients.

If you think you have been harassed, our harassment solicitors can explain your options, and our discrimination solicitors advise on all types of discrimination claim. If you have been accused of harassment, our article on the protections for workers accused of bullying or harassment may help.

Bear in mind the time limit for an employment tribunal claim, which for most claims is now six months, and that you normally need to contact Acas first. Employers can find help with policies and training through our employment law advice for employers.

To talk through a harassment issue, book a free 30-minute consultation with our employment solicitors or call 0141 471 9166.