When does workplace banter become harassment?

Discrimination legislation in the UK protects employees from “banter” which has the effect of violating their dignity or creating an intimidating, humiliating, hostile, degrading or offensive environment. Such conduct can amount to harassment if it is related to one of the protected characteristics listed below: –

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual Orientation

Office employees laughing

How much compensation can be claimed if harassment is related to a protected characteristic?

Compensation is uncapped in Tribunals for such a claim, so employers can face significant liabilities.

A one-off incident can amount to harassment. The victim need not have made the perpetrator aware that the conduct was unwanted.

Some might try to justify their behaviour on the basis that “it was just a jokeor it was intended to be humorous”. However, it is well-established law that the intention behind such conduct, even if it was meant to amuse, is no defence to a claim of harassment. It can still be unlawful if the effect caused offence, regardless of the purpose. The purpose, however, may bear upon the severity of the offence and elicit the question of how reasonable it would be to dismiss for such behaviour.

The Tribunal must consider if it was reasonable to accept that the conduct in question would have that effect. Liability for harassment doesn’t arise if the Tribunal considers that the victim is hypersensitive.

Playful or suggestive comments could still amount to misconduct even if they do not relate to any of the protected characteristics.  If the language breaches an employer’s anti-bullying and harassment policy, the employee may still be subject to an internal disciplinary process.

Can employers be held liable for the abusive behaviour of their staff?

Employers can be vicariously liable for the actions of their employees. This means the employer may be held responsible if an employee is found to have harassed a colleague. An employer will only have a defence if it took “all reasonable steps” to prevent the harassment from occurring.

What can employers do to prevent workplace harassment?

There are a number of ways employers can create a positive workplace culture and minimise their risk of being held vicariously liable for workplace harassment:-

  • Provide staff with regular equality and diversity awareness as well as anti-bullying and harassment training. This training should include information on the different forms harassment can take.
  • Implement policies on dealing with bullying and harassment issues, communicate them to staff, and take appropriate and consistent action to enforce them in the workplace.
  • Lead from the front as a management team and encourage staff to report any kind of harassment.
  • Act promptly if and when issues arise and don’t allow them to fester.

Allegations of bullying and harassment can lead to the raising of a formal grievance and potentially, a claim of constructive dismissal, particularly if an employer fails to deal with a complaint appropriately.

Workplace harassment can cause enormous distress to anyone subjected to it.  Our solicitors are available to provide you with professional legal advice if you are faced with bullying or abusive treatment in your work environment. Contact us today for a free initial conversation.


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