Office banter or harassment? Seven case law examples

office banter harassment

When barrister Charlotte Proudman tweeted what she described as a sexist message from a fellow lawyer on LinkedIn last month, she received broad support from people who agreed with her stand against everyday sexism. But she also faced harsh criticism from those who felt the message was harmless office banter, describing her public outing of the lawyer as a “feminazi” overreaction.

Bar Huberman rounds up some of the discrimination and harassment claims that followed inappropriate comments made by people at work.

Charlotte Proudman tweeted this picture from LinkedInLinkedIn is used by many to broaden their professional network. Charlotte Proudman felt that a fellow lawyer crossed the line when he commented that her profile picture was “stunning”. She said that she was on LinkedIn for “business purposes” and not to be approached by “sexist men”.

This exchange received huge media coverage in the following days.

Similar comments at work can lead to discrimination and harassment claims. The damage to an employer’s reputation from such claims, in addition to the costs involved in defending a claim, highlights the importance of creating an organisational culture that is free from harassment.

In many of the cases we highlight below, the tribunal noted the lack of discrimination and harassment training within the organisation, and a failure to update and follow relevant policies.

 

Gay lawyer who discovered homophobic comment in case file was discriminated against

In Bivonas LLP and other v Bennett, B found a handwritten note in which he and a colleague were discussed. Among other remarks, the note made reference to B’s “batty boy mate”.

This amounted to direct sexual orientation discrimination, because a reasonable worker could take the view that this was a detriment.

The tribunal noted that the claimant’s colleague who had investigated his grievance prior to the tribunal claim “had received no awareness training whatever in matters of equality, diversity or the possibility of unconscious as well as conscious prejudice”.

 

Heterosexual employee called “gay” won harassment claim

In Austin v Samuel Grant (North East) Ltd, a heterosexual male employee, A, won a sexual orientation and religion or belief harassment claim after repeated inappropriate remarks made verbally and by email.

During once incident, colleagues asked A whether or not he liked football. When A told them that he was not interested, his colleagues said “you’re gay then”.

A filed a grievance, which the HR director rejected, on the basis that the remarks were office banter. The company’s evidence was that this expression is “quite normal in North East England football circles”, and is treated as a joke.

 

One-off comment about age held to be discriminatory

In Clements v Lloyds Banking plc and others, the claimant, C, was an employee in his 50s. His manager, who had concerns about his performance, said to him during a conversation “you are not 25 anymore” and suggested moving him to a different role.

C resigned and claimed constructive dismissal following further conduct by the bank.

The tribunal decided that C was constructively dismissed but the dismissal was not tainted by age discrimination. However, the comment about C’s age was discriminatory, showing that a one-off comment can amount to discrimination.

 

Employee compared to women on “My Big Fat Gypsy wedding” was harassed

In Harper v Housing 21, the claimant, H, complained about the attitude of her line manager, J, towards her Irish nationality.

J’s offensive behaviour included repeatedly likening H to women on the TV programme “My Big Fat Gypsy Wedding”, although J said that her comments were office banter and that she did not intend any malice.

The employment tribunal upheld claims of direct race discrimination, racial harassment and constructive dismissal.

 

Employee who was the subject of speculation about a relationship with a colleague was harassed

What behaviour amounts to harassment?

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.

The term “unwanted” makes it clear that it is up to the victim of the alleged harassment to decide whether or not a particular type of treatment is offensive to him or her personally.

People are different, and what one employee finds hilariously funny may be offensive or degrading to another.

In judging whether or not particular conduct may amount to harassment, it is important to bear in mind that the motive of the “harasser” is irrelevant.

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 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.

 

Employee was subjected to harassment compared to banter in “Carry On” films

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 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.”

 

“Monkey” comment amounted to harassment

In Basi v Snows Business Forms Ltd, the employment tribunal awarded an employee who worked in sales over £2,000 for office banter that spilt over into racial harassment.

It commented that the office environment was conducive to “healthy banter” but found that the claimant, B, a Sikh of Indian origin, was harassed when he was called a “monkey” or “cheeky monkey” during a golf match at which business matters were discussed.

The employer did have a “rudimentary policy”, but there was “no satisfactory guidance, no training, no monitoring and no policing of this policy”.

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