What counts as harassment at work: the test tribunals actually use

Something happened at work that made you feel small, on edge, like you don’t belong. You’re wondering if it actually counts as harassmentUnwanted behaviour related to a protected characteristic, such as your sex, race, disability, age or religion, that violates your dignity or creates an intimidating, hostile or humiliating environment... in law. The test is more specific, and often lower, than people expect.

The two-part test

Under the Equality Act 2010The main piece of legislation protecting employees from discrimination at work. It covers nine protected characteristics including age, disability, sex, race, and religion, and makes it unlawful for a..., harassment has two parts. First, there has to be unwanted conduct, something said or done that you didn’t want and didn’t invite. Second, section 26 of the Act requires that conduct to relate to a protected characteristicOne of the nine characteristics listed in the Equality Act 2010 against which it is unlawful to discriminate. They include age, disability, race, sex, religion or belief, and sexual orientation. If yo..., your sex or your race, say, or a disability.

“Related to” is a wider test than people assume. The conduct doesn’t have to be a slur. It doesn’t have to be aimed at your characteristic on purpose. It just has to connect to it, in the tribunal’s judgement, once all the facts are looked at.

Unwanted conduct also has to have a certain effect: violating your dignity, or creating an environment that’s intimidating, hostile, degrading, humiliating, or offensive for you. A tribunal weighs both how you experienced it and whether it’s reasonable for it to have had that effect.

You don’t need to prove they meant it

In 2024, a sales manager brought a claim after a new director kept getting his first name wrong. Twice in the car on the way to a meeting, and twice more once they’d stopped, the director called him “Vikesh” instead of his actual name, Viveak. He corrected the director each time. The director never apologised or asked how to say it properly.

The employer argued this was just carelessness, not anything to do with race. The tribunal disagreed on the harassment point. It found the name the director kept using had a direct connection to race, and that getting it wrong, repeatedly, without care or apology, had the effect of humiliating the employee and creating a hostile atmosphere. The director hadn’t set out to be racist. He said in evidence he was surprised to be accused of it. That surprise didn’t save him. The tribunal found he simply hadn’t taken the time or care to avoid causing offence, and that was enough.

This pattern comes up again and again. A very similar approach applied in a case about repeated threats of disciplinary action during a bereavement, and in another about a broken promise to provide privacy after maternity leave.

It doesn’t have to be an obvious slur

In a separate case, a factory workerA legal category that sits between employee and self-employed. Workers are entitled to certain rights including national minimum wage, paid holiday, and protection from unlawful deduction from wages, ... was called a “bald cunt” by a colleague during an argument, and threatened with violence. The workplace had a culture of “industrial language”, sworn language was common on the shop floor, and the employer argued that meant nothing said there could count as harassment.

The tribunal, and later the Employment Appeal Tribunal on the employer’s appeal, rejected that. Swearing being normal didn’t matter once the remarks turned personal and targeted the employee’s appearance. On whether calling someone bald was actually related to sex, given that women can be bald too, the tribunal reasoned that baldness affects men far more often than women, so a targeted insult about it lands disproportionately on men. That was enough to make it related to sex in law, even though it isn’t exclusively a male trait.

The practical point: you don’t need a comment to be exclusively about your sex, race, or other characteristic for it to count. If it’s the kind of thing that overwhelmingly lands on people who share your characteristic, that connection can be enough.

A workplace culture of “that’s just how we talk here” is not a shield

Both cases above involved employers arguing that their normal way of doing things meant the conduct in question shouldn’t count. Both arguments failed. If bad language, blunt management, or “banter” is genuinely part of how a workplace operates, that context can matter to how a tribunal reads a specific remark. It does not give an employer, or a colleague, a free pass to make it personal, or to target someone’s protected characteristic under cover of “that’s just the culture here.”

Not everything unpleasant at work is harassment, and that matters too

It’s worth being honest about the limits, because knowing where the line actually sits helps you judge your own situation more accurately. In the same case involving the mispronounced name, the employee also complained about other things: an aggressive tone, being questioned hard about his sales figures, and eventually being dismissed altogether after the relationship broke down. The tribunal found all of that was genuinely unpleasant, and even unreasonable, but not related to his race. The director treated other sales managers the same abrasive way. It was a management style, not something connected to a protected characteristic.

This is the part people often get wrong in both directions. A boss can be difficult, blunt, or even unfair without that alone being unlawful harassment. What tips it into harassment is the connection to your race, sex, disability, age, religion, or another protected characteristic, not just the fact that it made you feel bad.

What to do if this sounds like your situation

Write down what was said or done. Note when it happened and who was there. Do this as soon as you can, memory fades fast, and a note made at the time carries real weight if you need to raise a grievanceA formal complaint raised by an employee against their employer, triggering a legal obligation to investigate and respond. or bring a claim later.

Think about the pattern, not just one moment. A single serious incident can be enough on its own, but repeated smaller things, like being misnamed four times rather than once, can also build a stronger picture than any one of them alone.

If you’re not sure whether what happened to you crosses the line, that uncertainty is normal, and it’s exactly the kind of question worth getting advice on early.

A settlement offer with a confidentiality clause attached is common. Knowing what that clause can legally require of you matters just as much as knowing whether what happened counts as harassment. See how NDAs and harassment reporting interact.

A harassment complaint doesn’t have to stop at your employer’s name either. See who can be held responsible for harassment at work for the full picture.