About The Author

Rebecca Young is an Employment Law Consultant with over 15 years experience and has been working for Avensure since 2015. Rebecca provides HR best practice and Employment Legislation support on a day to day basis to hundreds of UK based employers across many different sectors. Through these articles Rebecca hopes to share her experience and give employers a better understanding of how important it is to proactively seek advice from our experts in order to protect their businesses.

Harassment and the Perils of ‘Workplace Banter’

Harassment has rarely been out of the news over the last 12 months, with the focus being very much on sexual harassment, particularly against women. However, harassment takes many forms and can prove very detrimental to businesses. Here we look at what harassment is, how it often masquerades as ‘banter’ and the steps businesses can take to prevent and deal with it.

What is harassment?

Harassment is unwanted behaviour towards someone which can make them feel like their dignity has been violated in some way, makes them feel intimidated, humiliated and unsafe in their working environment.

What are examples of harassment?

  • spoken or written words
  • threats or abuse
  • offensive emails, tweets or comments on social media
  • physical behaviour including physical gestures and facial expressions
  • jokes, teasing and pranks
  • Spreading rumours
  • Making insults
  • Exclusion
  • Constant criticism

Harassment and unlawful discrimination

If someone is harassed due to any of the following, then this is a breach of the Equality Act 2010 and will amount to unlawful discrimination:

  • age
  • disability
  • gender reassignment
  • race
  • religion or belief
  • sex
  • sexual orientation

Harassment is usually thought of as being something which is carried out over time, such as a long and deliberate campaign of bullying. That is not always the case, harassment can be a one-off incident such as making a racist comment.

Harassment can also amount to criminal behaviour as well. For example, sexual harassment can be in the form of suggestive remarks, circulating pornography, making offensive jokes of a sexual nature. However inappropriate touching of a sexual nature without consent will constitute sexual assault.

I expect my employees to behave like adults, surely as an employer I can’t be held accountable for employees not getting on being oversensitive to ‘banter’?

You can expect your employees to behave like adults and it is inevitable that some employees will not get on. However, you have a duty to provide a safe working environment, this does not only include your responsibilities in terms of health and safety by way of workplace hazards etc, but also ensuring employees are not subjected to a hostile working environment which harassment can create.

Banter is commonplace and usually not a problem, but it is also often the source of harassment allegations.

Do I ban ‘banter’ and ask my employees not to interact at all other than for work purposes?

No. That would be unreasonable and impossible to police- as well as causing more problems than it aims to solve by creating a hostile environment.

What can I do?

Be proactive rather than reactive. Get advice from our expects on ensuring that you have the best policies and procedures in place to ensure that your employees know exactly what your standards are, how they go about raising any concerns they have and how those concerns will be dealt with.

I already have procedures in place, so if one of my staff does claim to be harassed that means the company is protected doesn’t it?

Not necessarily. A bullying and harassment or grievance procedure in an employee handbook which does nothing more than gather dust, is the same as not having procedures in place at all.

Take the opportunity to redistribute these policies regularly and ensure that those who are responsible for managing people know how to act and seek advice immediately.

Also, as a business owner, be sure to set an example to your staff by keeping your own behavioural standards high.

CASE LAW:

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.

The tribunal accepted that the office environment was one where ‘healthy banter’ was used but the claimant, a Sikh of Indian origin, was harassed when he was called a ‘monkey’ during a golf match at which business matters were discussed.

The employer did have a policy in place but there was ‘no satisfactory guidance, no training, no monitoring and no policing of this policy’.

This case places the spotlight on harassment as a one -off event and shows how harassment can also be discriminatory. It also illustrates the problems of failing to effectively deliver the policies which were in place.

REMEMBER- discrimination compensation awards are uncapped! The cost of getting this wrong is higher than getting the advice you need from our experts.

SUMMARY- Harassment and your business

We can see that harassment takes many forms, it can be carried out over a period of time or be a one-off incident. The impact can be costly in terms of tribunal claims for constructive dismissal and/or claims of discrimination under the Equality Act 2010.

Where harassment exists and goes unchallenged you will find yourself with an unproductive workforce, a lack of respect for management, poor employee morale and a high staff turnover- again very costly. You can’t afford not to take this seriously.