UK Employment Law: Harassment at Work

UK Employment Law: Harassment at Work

UK Employment Law: Harassment at Work

It's normally fairly safe to assume that employees don't enjoy being harassed by colleagues at work. However that is not always the case where someone has taken part in banter' of a similar nature, even if they do so in a misguided attempt to fit in.

In Thomas Sanderson Blinds v English (No.2) Mr English complained of homophobic 'banter' and sexual innuendo by his colleagues under the 2003 Regulations (now replaced by the Equality Act 2010). The Court of Appeal held that someone who suffers anti-gay banter at work, even though his colleagues know him not to be gay, was still protected by the Regulations (they joked that he was gay because he was Public School educated and lived in Brighton, but they knew that in reality he was not).

The case was then kicked back to the original Tribunal, which upheld a claim about only one incident of harassment: an article about Mr English in the in-house magazine which prompted him to complain. This was a tipping point', and beyond what he felt to be an acceptable level of personal attack and insult. The tribunal rejected all allegations of harassment prior to that because Mr English had participated in banter and name-calling, had written similarly offensive articles himself and was apparently good friends with his tormentors'. In the circumstances the conduct had not violated his dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for him. On appeal (again) the EAT held that in such a case the victim must reasonably feel his dignity to have been violated or an adverse environment created to succeed in a claim.

Jokey cultures at work can easily degenerate into harassment, in which the victim at first tries to play along in order to try and fit in and been seen as a good sport. They employee in question might be playing along with the banter through gritted teeth and inside might be seriously offended. However that is a dangerous strategy. Employees may find it harder to prove such claims following this decision.

Employers and managers should be alert to prevent that kind of culture arising, and give clear guidance in their Equal Opportunities/Harassment policy to help victims in that situation.

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