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When Office Banter Turns Nasty

Posted: Friday, 4 January 2019 @ 13:43

One of the problems facing employers is that they try to be professional yet provide fun environments for staff but this can cause potential legal difficulties, particularly if conduct within the organisation can ultimately become harassment.

When is that line reached?

Under discrimination law, behaviour will potentially amount to harassment if it is unwanted conduct 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.

However, what one employee finds amusing may be offensive or degrading to another. In deciding whether or not particular conduct may amount to harassment, it is important to bear in mind that the motive of the “harasser” is irrelevant. It is the result which counts.

There has been some case law on this on the Personnel Today site which I have found relevant to two cases I have been dealing with at Human Law.

The case law is.

In Furlong v BMC Software Ltd, the claimant, F, complained about a number of incidents, including that a senior vice president of the company groped her bottom and told her “he would like to eat her like a marshmallow”. She was also told by a manager that colleagues suspected her of having a relationship with a married male colleague.The Employment Tribunal upheld the claimant’s various claims including direct sex discrimination and sexual harassment.It made recommendations to the employer including that it review the equal opportunities training given to managers. 

In Minto v Wernick Event Hire Ltd, a female employee, M, was subjected to daily remarks that were of the same sexual nature as the theme of the “Carry On” films. Her manager gave evidence that banter, including strong language, was an everyday fact of life.The tribunal found that this amounted to sex discrimination and harassment.The Employment Tribunal said: “‘Banter’ is a loose expression, covering what otherwise might be abusive behaviour on the basis that those participating do so willingly and on an equal level.It can easily transform into bullying when a subordinate employee effectively has no alternative but to accept/participate in this conduct to keep his or her job.”

In my experience what happens is that the management often lose control(or do not set a correct example) and this creates the climate for more junior staff to attack employee(s). Once this happens the employer is basically done for. If they are well advised the employer will pay off the employee,(largely on her terms if the employee is not greedy) otherwise they are heading to Employment Tribunal.