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:

1. Harassment only applies to physical conduct.
2. As long as your behaviour isn’t directed at a person, you’re not harassing them.
3. If someone joins in with banter, they can’t claim it’s harassment.
4. Even if you think your behaviour is just “banter,” it can still be harassment if this is how it affects the other person.
5. Harassment only happens at the workplace.

Scroll for the answers:

Answers:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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

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