The case of Logo v Payone Gmbh & Ors related to race discrimination. The claimant, who identified as Black British, brought a number of harassment claims. Two of the complaints were significantly out of time to bring before a tribunal. Both were found to amount to harassment on the grounds of race but were dismissed as the employment tribunal did not extend the time allowed to bring the claims. A third claim that arose from a WhatsApp group posting a "Pure Blonde" beer advertisement depicting a blond "utopia" was dismissed as the employment tribunal found unanimously it did not have the purpose of harassment, and by majority found that it had no connection to race. It was therefore not reasonable for it to be regarded as having the harassing effect.
On appeal, the Employment Appeal Tribunal held that the employment tribunal had failed to properly consider the time-limit issues in respect of the first two complaints. It had focused too much on prejudice to the respondent of allowing the claims to proceed and did not expressly take into account the prejudice to the claimant. Those claims were remitted back to the employment tribunal for reconsideration. The EAT also found that in relation to the "Pure Blonde" advert, the employment tribunal had erred because they had focused on the intention of the employee who posted it rather than the claimant's perception. The tribunal had also erred in its assessment of whether the conduct was related to race. The EAT held the only rational decision was that the conduct was related to race, given its context.
The EAT did not make a finding on whether the conduct in circulating the "Pure Blonde" ad amounted to harassment, instead remitting it back to the employment tribunal. However, it was clear that the employment tribunal's focus on the intent of the perpetrator was an error.
The legal framework around harassment is the same. The Equality Act 2010 sets out that harassment occurs where one person engages in unwanted conduct related to a "relevant protected characteristic". This covers seven of the nine protected characteristics, including race and sex. The conduct must also have the purpose or effect of violating the complainant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The Equality Act then sets out three factors that must be taken into account when deciding if the conduct complained of has that effect. These are (1) the complainant's perception; (2) the other circumstances of the case; and (3) whether it was reasonable for the conduct to have that effect. The case of Mr Logo emphasises that intent is not required for harassment to have occurred.
How does this relate to sexual harassment?
Since September 2024, employers have been under a proactive duty to take reasonable steps to prevent sexual harassment from occurring. The Employment Rights Bill will strengthen that duty by requiring employers to take "all" reasonable steps to prevent sexual harassment. This is expected to come into force in October 2026. That begs the question: how can an employer prevent sexual harassment in the workplace where the perpetrator did not intend to harass?
What can employers do?
It needs to be borne in mind that even when the enhanced duty comes into effect, the requirement relates to taking all reasonable steps. Harassment may still occur, even when an employer has taken all reasonable steps to prevent it. Bearing that in mind, the focus of employers needs to be on identification of what steps can reasonably be taken. The current Equality and Human Rights Commission Employer 8-step guide focuses on:
- development of an effective anti-harassment policy;
- engagement with staff;
- assessing and taking steps to reduce risk in the workplace;
- reporting;
- training;
- responding to a harassment complaint;
- dealing with harassment by third parties (the Employment Rights Bill also introduces employer liability for this type of harassment); and
- monitoring and evaluating actions.
The Employment Rights Bill gives the UK government powers to set out in regulations what amounts to "reasonable steps" for the purposes of deciding whether an employer has taken or failed to take all reasonable steps to prevent sexual harassment. A call for evidence on what works to reduce and prevent sexual harassment took place earlier this year with a view to informing the content of those regulations. Bizarrely, the implementation roadmap for the Employment Rights Bill states the power to introduce these regulations will not take effect until after the enhanced duty is introduced. It remains to be seen if that is the case or if the regulations are introduced earlier.
Provision of thorough training and engagement with staff, alongside development of an effective anti-harassment policy, will go some way towards employers meeting the duty. Specifically, making employees aware that intent to harass is not required for legal liability will be essential – making employees stop and think before they act. If a complaint arises and is investigated, avoid making the same mistake as the employment tribunal here did. "I didn't mean it" may impact on whether a perpetrator requires disciplinary action or just more training, but it will not impact on whether harassment occurred or not.
As the EAT judge hearing the case pointed out, "Employers and employees can be expected to take greater care in how they speak and behave at work than they might in their social life. While it is in no one’s interest that colleagues should constantly be walking on eggshells, it is also important that proper protection is provided against violation of dignity at work.”
