When does workplace banter amount to sexual harassment?

Understanding what amounts to workplace sexual harassment is crucial, and even more so once the new duty to prevent sexual harassment comes into force on 26 October this year.

A recent employment tribunal decision makes it clear that a wide range of conduct, including what some may perceive to be “harmless” workplace banter, can amount to sexual harassment. We already knew that talking about your sex life at work can amount to sexual harassment. But what about using a sexual swear word, even where it’s not directed at anybody; can that amount to sexual harassment? While it did amount to sexual harassment in the case we discuss below, like all harassment cases, context is everything.

In this Law-Now we look at the recent case of Bratt v JGQC Solicitors Ltd and offer guidance for employers in managing workplace banter and avoiding complaints of sexual harassment. A key message is that staff should receive training to make sure they understand the boundaries of acceptable workplace banter and the consequences of crossing the line.

The facts of Bratt v JGQC Solicitors Ltd

The claimant was employed as a legal secretary in a firm of solicitors for approximately 7 weeks before she resigned in response to the behaviour of the owner, Mr Hall, and brought a claim for sexual harassment. The basis of the claimant’s claim was that Mr Hall had subjected her to unwanted conduct of a sexual nature, which made her feel anxious and uncomfortable. 

Examples of sexual harassment identified

The tribunal was satisfied that there were several incidents of sexual harassment. The tribunal noted that the EHRC’s Employment: Code of Practice specifically refers to a person discussing their own sex life as an example of sexual harassment and found that the following comments amounted to sexual harassment, including.

• Telling the claimant about his ex-partner cheating on him.
• Using several sexual profanities over the phone to the claimant. The words were not directed at the claimant, they were said in frustration, but that did not prevent them from amounting to sexual harassment.
• Telling the claimant that she “looked nice” before asking if he was allowed to say that.  The tribunal found that this behaviour was of a sexual nature and created an intimidating environment. 

The test for sexual harassment

The test for sexual harassment is that the behaviour must be unwanted 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 that person. The behaviour does not need to be sexually motivated for it to amount to sexual harassment.

There are three types of harassment under the Equality Act 2010. This case involved harassment of a sexual nature, as opposed to sex-related harassment, or less favourable treatment following harassment. This distinction is relevant in the context of the duty to prevent sexual harassment which only applies to harassment of a sexual nature. For more information on what the duty means for employers, see our recent Law-Now: New duty to prevent sexual harassment.

Key takeaways

While only a first instance decision, the case provides some key takeaways, and could helpfully feed into an employer’s strategy to prevent sexual harassment:

1. Have an effective procedure to respond to allegations of sexual harassment

One factor considered by the tribunal in reaching its decision was the workplace environment and the way in which the employer’s investigation into the grievance raised by the claimant about Mr Hall’s behaviour was undertaken: the tribunal noted that it was a small workplace, the employees had worked there for a long time and according to the tribunal were  protective of Mr Hall. The tribunal found the investigation into the grievance was not impartial, commenting that they were “very troubled” by the way in which the allegations were investigated.

 2. ‘Banter’ is not a defence

The tribunal explained that it did not matter that other people were not offended by the conduct. The tribunal noted that “it is all too easy for things to be said and given the label of ‘banter’ or that it was just a joke but this plainly cannot be right.  It is immaterial whether the conduct is acceptable to others or is indeed common in the workplace.”

3. The position with employees “accepting” workplace banter can change

The claimant was a new and junior employee and had only worked in the law firm for 7 weeks.  Businesses with long-standing employees cannot rely on the fact that current employees understand and condone the “banter”, as a new employee could very quickly challenge it. It is also not uncommon for long-standing employees to say they joined in with the banter because they felt they had to, but one comment changes the position, and they make a complaint that the conduct was unwanted.

4. The dangers of messaging colleagues on personal phone numbers

One key incident involved Mr Hall inadvertently messaging the claimant, which the claimant alleges said, “hi sweetheart see you in the morning xx” before he deleted it. The next day Mr Hall gave a different account of who the deleted message had been for. Ultimately, the tribunal found that the message was unwanted conduct of a sexual nature that had the effect of creating an offensive environment.

Employers should be aware of the risks of employees contacting each other on their personal numbers. A complete ban on this may be unrealistic given that many friendships are formed in the workplace. However, employees do need to be made aware of professional boundaries particularly where a manager is contacting a more junior employee out of hours.

Comment

Employers who fail to identify and/or tackle sexual harassment in the workplace already face the prospect of grievances and complaints, legal claims, unhealthy cultures and high turnover. However, they will soon also face the possibility of increased compensation costs in the event of legal claims. Under the new duty to take reasonable steps to prevent sexual harassment, compensation can be increased by up to 25% if a tribunal rules that an employer is responsible for sexual harassment and has failed to take reasonable steps to prevent it, i.e. has failed to comply with the new duty.

If your organisation has not yet thought about training or other measures to comply with the new duty to prevent sexual harassment, then please get in touch with your usual CMS contact.