In October 2024, a legal duty was imposed on all employers to “take all reasonable steps” to prevent sexual harassment of their employees. Several months on, has anything actually changed? Read on to find out more.
From the information our clients have shared with us, the short answer is no. Almost daily, we hear stories of offensive jokes, overt sexual innuendo, comments on appearance, intrusive questions about clients’ personal lives, “accidental” touching, non-accidental touching, doors being blocked…. etc etc. The list is long, varied and seemingly endless. However, when our clients object or in any way draw attention to this inappropriate and often, unlawful behaviour it is minimised. They are criticised because they “can’t take a joke” and, at some point, they will inevitably be told that “it’s just banter”.
Whilst it is acknowledged that humour and camaraderie can help build a positive team culture, workplace banter is often used as an excuse for inappropriate or unlawful behaviour.
What Is Sexual Harassment Under UK Law?
Under the Equality Act 2010, there are three types of harassment which are connected to sex. Those are:
- Harassment Related To Sex;
- Sexual Harassment; and,
- Less Favourable Treatment Because Of Rejection Or Submission To Conduct.
Harassment Related To Sex
This type of harassment starts with 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.
That unwanted conduct would then be related (connected to) sex. Examples from our clients include:
- A female member of staff is told she should be at home looking after her children rather than taking jobs away from men.
- On a work training event, a mixed sex group are told by the trainer that women struggle to understand the course and will need the men to help them.
- Before a work social event, a manager states he’s glad female employees are not coming as it is a better night out when it is just “the boys”.
In each of the examples above, when our clients objected, they were told variations of “it was just a joke”, that they were being “overly sensitive” and, it’s just banter.
Sexual Harassment
This type of harassment is the one most people think of when sexual harassment is mentioned. It is also the type of harassment to which the October 2024 sexual harassment duty applies. It is defined as unwanted conduct of a sexual nature 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.
In addition to many accounts of inappropriate physical touching, examples from our Clients include:
- Our client told her friend that she was going away with her partner for the weekend. Her manager overheard and then made repeated references to being “up for a dirty weekend” and speculating in graphic sexual detail about what she might be doing whilst away.
- A manager introducing our client to customers as a “perk” they would get if they signed up with the Company.
- A group of employees using AI and our client’s Company profile picture to create what looked like naked photos of our client. They then shared those images with others.
Again, when our clients objected, they were told variations of “it was just a joke”, that they were being “overly sensitive” and, it’s just banter.
Less Favourable Treatment Because Of Rejection Or Submission To Conduct
Although not strictly relevant to a blog about workplace banter, for completeness it is worth considering this third type of sex harassment. It also begins with unwanted conduct of a sexual nature 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.
It is harassment if there is less favourable treatment because of rejection or submission to the conduct above. Examples from our clients include:
- Our client was invited to attend an out of town conference which would significantly benefit her career. Her manager then said she had to share a hotel room with him. When she (politely) explained that she would make her own arrangements for accommodation, she was told she could no longer attend the conference.
- Our client had a relationship with a male manager. That relationship ended (she believed) amicably. Her ex-partner then began to watch her at work. He would make public comments suggesting she was sleeping with any male colleague she may interact with and making references to intimate occasions when they were a couple. She then found herself subject to a Performance Improvement Plan without any justification.
- Our client had a relationship with the married owner of the company where she worked. His wife became aware of the relationship. As a consequence, she was told that she had to resign. When she refused, she was effectively ostracised and isolated from her colleagues, she was not allowed to attend any company events, bonuses and payrises were withheld etc. When she complained, she was told that she should resign if she was not happy.
The Myth of “Just Banter”
As indicated above, many harassment complaints are dismissed by the employer (and the people responsible) as “just banter” or “part of the office culture.” However, UK employment tribunals have consistently ruled that such defences do not excuse unlawful conduct. What one person sees as a joke, another may experience as degrading or threatening. The law emphasises the perception of the recipient, not just the intention of the speaker (although often such intentions are not as benign as the employer suggests). An employer’s failure to intervene or to take a complaint seriously can (and often does) result in a successful harassment claim.
Employers in the UK have a legal duty of care to protect employees from harassment in the workplace. Under the Equality Act 2010, an employer can be held vicariously liable for the actions of its staff unless it can show it took “all reasonable steps” to prevent the misconduct.
Reasonable steps are likely to include:
- Implementing and enforcing a clear anti-harassment policy
- Regular staff training on acceptable behaviour
- Prompt and thorough investigation of complaints
- Providing safe channels for reporting concerns
In not addressing harassment or treating it as “harmless banter”, an employer fails to acknowledge or appreciate the impact such behaviour can have on the person being harassed.
Our male client was bending over to pick up something from the floor. In front of others, a female colleague smacked him on the bottom saying she “couldn’t resist”. Managers and colleagues alike laughed, finding his discomfort amusing. When he made a complaint, his employers were bewildered. In their opinion, it was all a “good laugh”, a bit of “harmless fun”, “workplace banter” and somehow what happened was acceptable because he was a man.
We helped our client successfully pursue his claim. Whilst working with him he explained how humiliated he felt about what had happened. Due to the way everyone else responded, he was doubting himself and wondering whether he was overreacting.
Obviously, he was not overreacting; everyone is entitled to go to work without fear of assault and humiliation. He explained that he was concerned about where his employers would “draw the line”. They clearly thought nothing of an incident that was witnessed by colleagues and managers. His mental health suffered through him doubting and second guessing himself about the incident. Also, from a genuine fear of how far his colleagues may be allowed to go by touching and humiliating him with the endorsement of his employer.
Lincs Law Employment Solicitors Can Help You
If you are a victim of workplace sex harassment and need help, call us on 01522 440512 for a free, no obligation enquiry. We know how harassment at work can affect every part of your life. We also know that it is rarely “just banter”. Call us, we want to help.
Sally Hubbard
Managing Director, Specialist Employment Solicitor
Lincs Law Employment Solicitor
Tags: harassment related to sex sally hubard sally hubbard employment solicitor sex harassment sexual harassment sexual harassment and workplace banter sexual harassment claim sexual harassment complaint workplace banter
