Regulatory Briefing: Allegations of harassment in disciplinary proceedings: A guide to s.26 Equality Act 2010

By Lee Fish

October 2023

Many professional people will have suffered harassment in the workplace. Many will have witnessed it. Many will have subjected others to unwanted comments and behaviour. The purpose of this article is not to shine a light on inappropriate behaviour in the workplace. Its purpose is to provide a basic guide to the relevant provisions of the Equality Act 2010 (EA 2010) as increasingly practitioners are dealing with allegations of misconduct against professionals, which are pleaded as having contravened the EA 2010. This could arise in many circumstances.  The provisions will often be deployed when alleging that an individual’s behaviour amounts to sexual harassment.

Equality Act 2010

The crucial provision that will occupy practitioners is section 26 of Equality Act 2010. This sets the statutory framework, which regulators such as the GMC are using to frame allegations of behaviour that amounts to sexual harassment. It could also be used for other types of harassment.

There are 3 ways in which behaviour can amount to harassment within the EA 2010:

i. Section 26 (1) EA 2010 – unwanted behaviour relating to a protected characteristic. These characteristics are defined at s.26 (5) as age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation.

ii. Section 26 (2) EA 2020 – unwanted behaviour of a sexual nature. This is not confined to sexual touching or sexually motivated conduct. Behaviour that can engage s.26(2) includes:

·       Comments about someone’s appearance.

·       Pestering someone to go on a date.

·       Making sexually explicit remarks about someone or to someone

·       Engaging in innuendo in someone’s presence.

Whether behaviour is sexual or sexualised will ultimately be a question of fact. The dictionary definition of sexualised is to make something sexual. Whilst some behaviour will be unambiguously sexual other behaviour could be open to multiple interpretations. Often context will be key. Further, it may not be what was said but how it was said.

iii. Section 26(3) EA 2010 – unwanted behaviour of sexual nature in relation to gender reassignment.

When behaviour falls within s.26 (1), (2) or (3) the tribunal must then consider s.26(1)(b) as the behaviour will only amount to harassment within the framework of the EA 2010 if “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.”

The court must consider s.26(4) when considering if the behaviour satisfies s.26(1)(b.) The points a tribunal must consider are:

(a) the perception of B;

(b) the other circumstances of the case;

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

Section 26(4) creates an objective and subjective question, which a tribunal should always ask itself. The perception of B is the subjective question. This requires a tribunal to look at whether the individual perceives that their dignity has been violated or an adverse environment created. If an individual is not adversely affected by the comments, however egregious they are, it is likely to be difficult to satisfy s.26(1)(b). On the other hand if an individual says that they were affected by the comments this is likely to satisfy the subjective question.

The tribunal will also have to consider all the circumstances and consider the objective question namely, whether it is reasonable for the conduct to have that effect. This question is designed to protect against hypersensitivity or when offence is taken unreasonably. It clearly was never intended that every unfortunate phrase would attract liability for harassment under EA 2010. Intent can be a relevant factor in determining whether it was reasonable for the conduct to have the prescribed effect.[1]

It follows, therefore, that unwanted comments/behaviour will not automatically result in a finding of harassment. Context will always be of crucial importance. The reaction of the other person will be important. Their behaviour will also be important. In the event, that an individual who has sexualised/racial comments made towards them then make similar sexualised/racial comments back, it could be argued that s.26(1)(b) has not been satisfied. Further, if an individual makes a remark towards an individual who then reacts disproportionately and unreasonably it could be argued that it was unreasonable for the words to have that effect. This always must be approached with sensitivity.

In the event that it is broadly accepted that a comment has been made or that an individual has behaved in a particular way, it cannot be overstated how important s.26(4) will be. Some conduct will clearly contravene s.26 and will amount to harassment. Other conduct will be capable of being rigorously defended relying on the criteria in s.26(4).

Reverse Burden?

This is unlikely to arise often during professional disciplinary proceedings. Section 136 provides:

“(1)This section applies to any proceedings relating to a contravention of this Act.

(2)If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3)But subsection (2) does not apply if A shows that A did not contravene the provision.

(4)The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.

(5)This section does not apply to proceedings for an offence under this Act.

(6)A reference to the court includes a reference to— (a) an employment tribunal; (b) the Asylum and Immigration Tribunal; (c) the Special Immigration Appeals Commission; (d) the First-tier Tribunal; (e) the Special Educational Needs Tribunal for Wales; (f) an Additional Support Needs Tribunal for Scotland.”

Sections 136 (2) and (3) are the crucial provisions. They allow for a tribunal to find, in absence of any explanation that the behaviour contravened the provision concerned assuming there is a factual basis for doing so. It then shifts the burden to the accused person. Whether this provision applies to regulatory tribunals is open to debate. Section 136(1) refers to “any proceedings” but professional regulatory tribunals are not included in the list within s.136(6) of those processes which are included in the definition of “the court.” Further, s.136(5) refers to the provision not applying to proceedings for an offence under the EA 2010.

In practice it seems unlikely that this provision will operate within professional regulatory tribunals for three reasons:

i.  Professional regulators bear the burden of proof when misconduct is alleged.  It would be a concern if s.136 was used to circumvent that. A tribunal will no doubt assess the evidence and will either find that there has been a breach of EA 2010 or not without having to resort to s.136.

ii. It will be very rare when there is no evidence provided to defend/explain behaviour, which is principally how s.136 operates.

iii.  If no evidence is called to defend/explain behaviour this will no doubt be weighed in the balance in any event when deciding whether an alleged breach of EA 2010 is proven.

Concluding observations

These are relatively straight-forward provisions in their operation. They are also a powerful and structured way in which to frame sexual harassment allegations. I have had recent experience of them being applied within the Medical Practitioners Tribunal Service (MPTS). They provided a clear and balanced framework for the allegations against the doctor to be determined. I expect to see this approach used increasingly within the MPTS and beyond.

[1] Richmond Pharmacology v Dhaliwal 2009 ICR 724, EAT

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