"Discrimination" and "harassment" are both unlawful at work in England and Wales under the Equality Act 2010, and they often overlap, but they are distinct legal wrongs with different definitions and different things to prove. Understanding the difference helps both employees and employers respond correctly. Here is a plain-English guide.
Discrimination, unfair treatment because of who you are
Discrimination is treating someone unfavourably in connection with a protected characteristic (age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion or belief, sex, sexual orientation). Its main forms are:
- Direct discrimination, treating someone less favourably because of a protected characteristic (this usually involves comparing how others were or would be treated).
- Indirect discrimination, applying a policy that disadvantages a protected group, unless objectively justified.
So discrimination is essentially about less favourable treatment or disadvantage linked to a protected characteristic, often requiring a comparator.
Harassment, conduct that violates dignity
Harassment is defined separately. Note that under the Equality Act 2010, harassment does not apply to marriage and civil partnership, and does not generally apply as a stand-alone claim for pregnancy and maternity (which are protected by other provisions). For the characteristics to which it does apply, harassment is unwanted conduct related to a protected characteristic (or conduct of a sexual nature) that has the purpose or effect of:
- violating a person's dignity; or
- creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Key differences from discrimination:
- harassment focuses on the conduct and its effect on the victim, not on comparing treatment, there is no need for a comparator;
- it can be a one-off serious incident or a course of conduct;
- the conduct must be unwanted, and whether it had the prohibited "effect" is judged taking into account the victim's perception, the circumstances, and whether it is reasonable for the conduct to have that effect.
Sexual harassment and the duty to prevent it
The Equality Act specifically covers sexual harassment (unwanted conduct of a sexual nature) and less favourable treatment for rejecting or submitting to such conduct. Employers now also have a proactive duty to take reasonable steps to prevent sexual harassment of their workers, a positive obligation to act before it happens.
How they overlap
The same facts can be both. For example, a manager making racist remarks to an employee could be harassment (unwanted conduct related to race violating dignity) and evidence of direct discrimination if it leads to less favourable treatment (e.g. being passed over for promotion). An employee may bring both claims.
What employees and employers should do
- Employees: keep a record of incidents (dates, what was said/done, witnesses), use the employer's grievance/complaint process, and note that most Equality Act claims must be presented within three months less one day of the act complained of (or the last act in a continuing course of conduct), subject to the effect of Acas early conciliation on the calculation of time.
- Employers: have clear anti-harassment and equal-opportunities policies, train staff, take complaints seriously, and meet the duty to prevent sexual harassment. Compensation for both discrimination and harassment is uncapped and can include injury to feelings.
Key takeaways
- Discrimination is less favourable treatment or disadvantage because of a protected characteristic (often needing a comparator); harassment is unwanted conduct related to a characteristic that violates dignity or creates a hostile environment (no comparator needed).
- Harassment focuses on the conduct and its effect (judged partly on the victim's perception); it can be a single incident.
- The Act specifically covers sexual harassment, and employers must take reasonable steps to prevent it.
- The same facts can give rise to both claims; compensation is uncapped and includes injury to feelings, act within the time limits.
Sources
- Equality Act 2010 (direct and indirect discrimination; harassment, s 26; sexual harassment; the s 40A duty to prevent sexual harassment)
- EHRC Code of Practice on Employment and harassment guidance
- Employment Tribunal procedure and remedies (uncapped compensation; injury to feelings); Acas early conciliation and time limits
--- This article is general information about the law of England & Wales as at 2026, not legal advice. For advice on your circumstances, consult a qualified solicitor.