When Does Workplace Banter Amount to Sexual Harassment?
On 26 October 2024, the new Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force. The Act introduces a positive legal obligation on employers to take reasonable steps to protect their workers from sexual harassment. A recent Employment Tribunal case has highlighted that what some may consider "banter" can still amount to harassment. The importance of understanding these boundaries has never been greater, as businesses could face up to a 25% increase in compensation for failing to meet these new requirements.
But how well do you understand what counts as harassment? Test yourself with the questions below:
True or False:
- Harassment only applies to physical conduct.
- As long as your behaviour isn’t directed at a person, you’re not harassing them.
- If someone joins in with banter, they can’t claim it’s harassment.
- Even if you think your behaviour is just "banter," it can still be harassment if this is how it affects the other person.
- Harassment only happens at the workplace.
Scroll for the answers:
Answers:
- FALSE Harassment can include spoken words, jokes, written messages, gestures, or even silence. It’s not limited to physical actions—many different behaviours can create a hostile environment.
- FALSE Even if someone overhears inappropriate comments or behaviour not aimed at them, it can still be harassment. Witnessing offensive actions can have a damaging effect.
- FALSE The law recognises that people may join in to avoid conflict or keep peace with their harasser. Just because they participate doesn’t mean the behaviour was welcome.
- TRUE Harassment is about how it makes the other person feel, not your intention. If it creates discomfort, it may be considered harassment, even if it wasn’t meant to.
- FALSE Harassment can occur at work events, online, or through personal messaging apps. The "workplace" extends beyond the office in today’s work culture.
Now that you’ve tested your understanding, let’s take a look at how a recent case highlights these issues and the important lessons for employers.
Bratt v JGQC Solicitors Ltd: What Employers Need to Know
In this case, a legal secretary left her job after just seven weeks due to inappropriate behaviour from her boss, Mr Hall. The Tribunal found that she had been subjected to unwanted comments and language, which made her feel uncomfortable and created a negative environment. Mr Hall argued that his actions were just "banter," but the Tribunal ruled that how the claimant felt was what mattered, not his intentions.
Incidents included the use of sexual swear words, comments on the claimant’s appearance, and an inappropriate message sent to her personal phone. Even though these remarks weren’t directly aimed at her, they contributed to an uncomfortable work environment.
Key Lessons for Employers
- Banter can be harassment: Just because others accept certain behaviour, it doesn’t mean it’s harmless. If someone feels negatively impacted, it can be classed as harassment.
- Maintain clear boundaries: It’s important to set guidelines for communication, especially outside of work hours, to avoid crossing professional lines.
- Support new staff: New employees may feel less able to speak up about inappropriate behaviour. Employers should create an environment where everyone feels safe and respected.
Preparing for the New Law
From October, employers will need to take specific steps to prevent sexual harassment. One key defence for businesses facing harassment claims will be to demonstrate that they have provided sector-specific training for their staff. General training is not enough—employers must ensure the training is tailored to the unique challenges and behaviours in their industry. Failure to provide this could lead to higher compensation claims, making it essential for businesses to prioritise this training as part of their compliance strategy.
How Bell Taylor Can Help
At Bell Taylor, we provide expert fixed-fee guidance, delivered directly from our lawyer-led team, to help your business meet these new legal requirements. Keep a lookout for our upcoming announcement on practical training sessions designed to equip your managers and staff with the knowledge they need to create a respectful workplace and comply with the new guidance. If you're interested in this training, please reach out and contact us today. By taking these steps now, you can protect your business from potential claims and ensure compliance.
Office: 01743 298000
richard@belltaylor.com / 07944 976817
ben@belltaylor.com / 07983 375828
Why Employers Should Pay Attention to Whistleblowing Claims
The recent Employment Appeal Tribunal (EAT) decision in Treadwell v Barton Turns Development Ltd is a significant case that highlights the risks for employers and individual managers when handling whistleblowing complaints. If you’re a business owner, director, or manager, this case highlights the importance of understanding the legal landscape to avoid potentially costly mistakes.
Miss Treadwell’s Role and Employment
Miss Treadwell was employed as an events manager by Barton Turns Development Ltd, a position she held for just five months before her dismissal. During her time with the company, she became concerned about certain issues in her workplace, which led to her making what are known as "protected disclosures."
What Are Protected Disclosures?
Protected disclosures, commonly referred to as whistleblowing, occur when an employee reports certain types of wrongdoing or illegal activities within a company. These can include health and safety breaches, financial fraud, or breaches of legal obligations. The law protects employees who make such disclosures, meaning they should not face retaliation—like being dismissed—for raising these concerns.
The Issues Reported by Miss Treadwell
Miss Treadwell reported two significant issues to her employer. The first involved concerns about the state of the property where she worked, which she believed could have serious implications for health and safety. The second issue was a report she made to her director, Ms. Wyss, about what she perceived to be a threat made against her by another employee. Treadwell felt that this threat was not taken seriously by Ms. Wyss, which added to her concerns.
The Dismissal
On 28 June 2022, Miss Treadwell was dismissed by Barton Turns Development Ltd, specifically by Ms. Wyss. The employer gave a different reason for the dismissal, suggesting it was due to other performance-related issues. However, Treadwell believed that the true reason for her dismissal was directly linked to the protected disclosures she had made.
The Original Claim: Automatic Unfair Dismissal
Following her dismissal, Miss Treadwell brought an initial claim of automatic unfair dismissal under the Employment Rights Act 1996. She argued that her dismissal was directly related to her making protected disclosures (whistleblowing). Under the law, if an employee is dismissed primarily because they made a protected disclosure, this dismissal is automatically considered unfair, regardless of the employee's length of service.
The original claim targeted the employer’s direct action of dismissal, with the focus being on whether the dismissal was a direct consequence of her whistleblowing.
Amending the Claim: Whistleblowing Detriment
As the case progressed, Miss Treadwell sought to amend her claim to include an allegation of whistleblowing detriment. In this amended claim, she argued that the dismissal itself was not just unfair but also constituted a detriment - a form of retaliation against her for making protected disclosures.
This claim introduced a broader perspective by seeking to hold the company vicariously liable for the actions of its director, Ms. Wyss, who carried out the dismissal. Miss Treadwell's legal strategy here involved alleging that the dismissal was part of a series of detrimental actions related to her whistleblowing. Essentially, she argued that her dismissal was a retaliatory act, and both Ms Wyss and the company should be held responsible for this.
The Option to Bring a Claim Against the Individual Director
An additional important aspect of the Treadwell case is that, under the precedent set by the Court of Appeal in Osipov, Miss Treadwell had the option to bring a claim directly against Ms. Wyss, the director who dismissed her. While Miss Treadwell chose not to pursue this route, Osipov makes it clear that she could have done so.
In Osipov, the Court of Appeal held that an employee could bring a claim under section 47B(1A) of the Employment Rights Act 1996 against an individual co-worker—such as a manager or director—if that individual subjected the employee to a detriment, including being involved in the decision to dismiss. This means that in cases of whistleblowing, not only can the company be held vicariously liable, but the individuals who made the decision to dismiss can also face personal liability.
This possibility of facing personal liability should make directors and managers cautious when handling dismissals that could be related to whistleblowing. Even if the employee does not initially bring a claim against an individual manager or director, the legal framework allows for such a claim to be made, which could have serious implications for the individuals involved.
Why This Matters for Employers
The EAT’s decision to allow Miss Treadwell’s amended claim highlights a significant risk: directors or managers involved in dismissal decisions related to whistleblowing could be personally liable for those decisions. This goes beyond the company being liable for unfair dismissal—it opens the door to additional claims of detriment, which could result in higher compensation for the employee, such as damages for injury to feelings.
For business owners and managers, this case serves as a crucial reminder to tread carefully when handling any employee complaints, especially those that might be considered whistleblowing. Even if a dismissal seems justified from a business perspective, if it’s linked to a protected disclosure, it could lead to significant legal challenges.
Why You Should Seek Legal Advice
At Bell Taylor, we understand that navigating the complexities of employment law can be daunting, especially with cases like Treadwell highlighting the potential for personal liability in whistleblowing claims. As the legal landscape continues to evolve, it’s more important than ever for businesses to be proactive in managing these risks. Whether you need to review your current policies, seek advice on handling whistleblowing complaints, or ensure compliance with the latest legal standards, we’re here to help.
Our practical approach ensures that your business stays compliant while protecting both your interests and your employees. Don’t wait until a claim arises—take action now to safeguard your business and its leaders from potential liabilities.
For more information on how we can help your business navigate these issues, feel free to get in touch directly:
Bell Taylor Office: 01743 298000
Richard: richard@belltaylor.com
Ben: ben@belltaylor.com
A Word of Caution About Scare Tactics in HR Marketing
Returning to the office after a summer holiday always brings a touch of the blues. This week, however, my mood took a different turn when I came across a letter from a supposedly local HR consultancy inviting businesses to a "free" webinar. Their letter painted a terrifying picture of the employment law landscape post-King's Speech, seemingly designed to scare the pants off business owners and managers.
While it's true that this year will be notable for a significant number of employment law changes, there's absolutely no need to panic! Here are some key changes introduced in the recent King's Speech:
- Making parental leave, sick pay, and protection from unfair dismissal available from day one, subject to special rules for probationary periods.
- Banning zero-hour contracts, ensuring workers have a right to a contract that reflects the hours they regularly work.
- Ending ‘fire and rehire’ and ‘fire and replace’ by reforming the law and replacing the statutory code.
- Removing the lower earnings limit and waiting period for Statutory Sick Pay.
- Making flexible working the default for all workers from day one and requiring employers to accommodate this as far as is reasonable.
- Making it unlawful to dismiss a woman who has had a baby for six months after she returns to work, with certain exceptions.
- Creating the Fair Work Agency to enforce workplace rights.
- Introducing a Fair Pay Agreement in the adult social care sector.
- Repealing the law on minimum service levels in relation to industrial action.
- Simplifying the process of statutory recognition for trade unions.
- Introducing a right for workers and union members to access a union within workplaces.
One thing that got my back up was their assertion that they are local to the area when they are not (no problem if not, but don't mislead). Their letter serves to create unnecessary fear, suggesting the world of work is about to explode. While change is indeed coming, businesses shouldn't be driven to panic.
Sadly, this is a common tactic among some HR consultancies. They lure businesses with free webinars and tell them they will be non-compliant and end up in a tribunal, and then push them into long-term contracts offering low-level, formulaic, and uncommercial services. These deals often include aggressive automatic renewal clauses, locking businesses in for another 5 years if not careful! Imagine being stuck with a call-centre style service that’s neither personal nor effective and with no idea (or desire) about achieving your commercial goals.
Conversely, at Bell Taylor, we believe in providing clear, proactive, and practical advice. We have years of proven success in keeping clients out of tribunals through quality advice and commercial decision-making - a quality that is incomparable to many other advisers.
So I guess my message is this: don't be swayed by mass marketing tactics that promise the world but deliver little. Trust in experienced professionals who understand the intricacies of employment law and how the employment tribunal system works, and who provide personalised, reliable support.
We're here to help you handle the forthcoming legislative changes (expected this October) seamlessly. If you have concerns about the upcoming changes, feel free to reach out to us on 01743 298000 or richard@belltaylor.com or ben@belltaylor.com. Your business's success and compliance are our top priorities.
We now await the draft legislation itself!
Digital Communication and Employee Grievance Management: Lessons from Blackpool Council
In an era where digital communication is intertwined with the workplace, the recent Employment Tribunal decision in the case of Russell v Blackpool Council provides important lessons for employers on managing digital platforms at work. The case highlights the importance of proactive management of digital communications, and responsive handling of employee grievances.
Mrs. Russell, a participant in a work-related WhatsApp group, raised concerns about inappropriate messages shared within the group. Despite her complaints, the council's response was deemed insufficient, culminating in a tribunal ruling in favour of her claim for constructive dismissal.
The tribunal criticised the supervisor-led WhatsApp group used for both official and casual communications, where professional and personal interactions led to the sharing of inappropriate content. Examples of these inappropriate messages included:
- Mocking comments about the belongings of an elderly service user with mental health issues.
- Sexual innuendos using phrases like “bringing up the rear” in a professional context.
- Judgmental remarks about a service user's spending habits, indicating a lack of professionalism.
- Derogatory comments about "gypsy families" contributing to disorder in a school.
The employer’s failure to adequately address Mrs. Russell’s grievances was a critical factor in the tribunal's decision. The superficial response highlighted the necessity for a thorough and sensitive approach to employee concerns.
Practical Implications for Employers
- Employers should develop and enforce clear guidelines concerning the use of digital communication tools. These policies should outline acceptable behaviours and the separation between professional and personal communications.
- Providing regular training on the appropriate use of communication technologies can prevent misuse. Training should cover legal implications, privacy considerations, and the potential for harassment or discrimination.
- Upon receiving complaints, employers should conduct thorough investigations and take appropriate actions based on the findings. A robust procedure for handling complaints not only addresses specific issues but also reinforces a culture of respect and responsiveness.
- Employers should regularly monitor digital communication channels to ensure compliance with workplace policies. Regular reviews of communication practices help in adapting to new technologies and maintaining effective oversight.
- Managers and supervisors should exemplify the highest standards of professional communication. Their behaviour sets a tone for the team and impacts the overall workplace culture.
Conclusion
The Blackpool Council case underscores the complexities of managing workplace communications in digital spaces and serves as a reminder that effective management is as much about technology as it is about people management and the proper handling of grievances.
Employers should ensure that their policies, training, and leadership are equipped to handle these challenges, safeguarding both the interests of their employees and their organisational objectives.
Excluding Staff from WhatsApp Groups: A Cautionary Tale of Discrimination
An employment tribunal has ruled that excluding an employee from a work-related WhatsApp group can amount to discrimination. This recent case highlights the need for businesses to be vigilant in their management and communication practices, ensuring that they avoid potential pitfalls that may lead to discrimination claims.
The Case:
Mark Brosnan, a plumber working for Coalo, owned by Hounslow borough council, was excluded from a work-related WhatsApp group designed to communicate important safety information. Mr. Brosnan was on sick leave due to a back injury, and he contended that this exclusion was a result of discrimination. The tribunal awarded Brosnan a staggering £134,411 in compensation, a figure that incorporates loss of future earnings, injury to feelings, and personal injury.
Implications for Employers:
Employment Judge Sarah George’s decision emphasises the importance of ensuring fair treatment for all employees, irrespective of their health status or any other protected characteristic. This means:
- Justified Actions: Employers need to be certain that their actions, even as seemingly innocuous as adding someone to a WhatsApp group, are justifiable and non-discriminatory. In this instance, the company failed to prove that excluding Brosnan was a "proportionate means of achieving a legitimate aim" (a potential defence to discrimination claims)
- Communication: It is essential for employers to maintain transparent communication channels with employees, especially those on sick leave. The tribunal highlighted that while some employers might refrain from contacting staff on sick leave to avoid worsening their conditions, it cannot be a presumed action without justification.
- Health and Safety: The case also drew attention to the significance of listening to employees’ health concerns. Brosnan's suggestions and occupational health recommendations, including workplace assessments and lumbar support, were overlooked, contributing to further injury and his subsequent claim.
Key Steps for Employers:
To avoid falling into similar pitfalls, employers should:
- Review Communication Protocols: Ensure that any workplace communication groups, whether on WhatsApp or other platforms, are inclusive. Regularly review membership and ensure those on leave are not unjustifiably excluded.
- Understand Discrimination: Train managers and HR personnel to understand all facets of discrimination, ensuring they are equipped to make informed decisions.
- Engage with Occupational Health: Pay heed to recommendations from occupational health professionals. Act promptly and ensure all necessary adjustments are made for employees returning from sick leave.
- Open Dialogue: Encourage an environment where employees feel they can express their concerns. A transparent feedback system can help identify and rectify issues before they escalate.
How Bell Taylor Can Help:
As a trusted partner in employment law advice and HR support, we stand ready to guide and support employers through the complexities of the modern workplace.
As qualified and experienced lawyers, our expertise ensures that businesses not only stay compliant but also foster an environment that respects and values all employees. With our assistance, employers can navigate challenges with confidence, reducing risks and enhancing employee satisfaction.
In conclusion, the Brosnan case serves as a reminder of the intricate challenges businesses face in ensuring fair treatment for all employees. With the right support, guidance and proactive measures, these challenges can be transformed into opportunities for growth and improved employee relations.
Clear-Sighted Legal Support: Your Ally in Employment Matters
The recent employment case of AECOM Ltd v Mallon highlights a pertinent issue faced by employers - the duty of making reasonable adjustments for individuals with disabilities right from the recruitment stage.
In this case, a dyspraxic job applicant found the online application process challenging. Despite expressing his difficulty and proposing an alternative method of application, the employer insisted on the standard online procedure, which later was deemed to lack reasonable adjustments for the applicant’s condition, leading to legal repercussions.
This scenario is not just a one-off incident, but a reflection of the complex, evolving landscape of employment law, underscoring the critical importance of proactive legal oversight in all employment phases to ensure compliance, inclusivity, and fairness.
Here’s how having Bell Taylor by your side can significantly alter the narrative:
- Early intervention: With our proactive approach, we assist in refining your recruitment processes to ensure they are inclusive, accommodating, and legally compliant from the onset.
- Informed decisions: Equipped with insights on a diverse range of conditions and the required reasonable adjustments, you would be well-placed to respond empathetically and legally to situations akin to the AECOM Ltd v Mallon case.
- Pre-emptive legal safeguard: Our timely advice could deter a legal cascade, conserving not only financial resources but also safeguarding your brand’s reputation.
- Bespoke support: From advising on tailored reasonable adjustments to navigating the complex legal landscape of terminations, our hands-on, personalised support ensures you're never navigating these waters alone.
- Education & training: Our continuous engagement not only resolves issues as they arise but educates your team, fostering a culture of inclusivity and legal awareness.
- Cost predictability: With our fixed fee model, this invaluable partnership comes without financial unpredictability. You know the cost upfront, so no clock watching or nasty surprises.
- Unwavering availability: The legal realm doesn’t operate on a 9-5 schedule, and neither do we. Our unlimited legal advice ensures we’re there whenever you need us, helping you steer clear of unforeseen legal quandaries.
The AECOM Ltd v Mallon case illustrates the ripple effects of a single oversight. With Bell Taylor, you're not merely getting legal support; you're investing in a proactive legal ally that fortifies your employment practices from recruitment to termination.
Don’t wait for a legal storm to seek proficient support. Let Bell Taylor be your legal partner in navigating the unpredictable climate of employment law & HR.