Harassed but Happy?

James Carmody of Reculver Solicitors considers a decision in the UK Employment Appeals Tribunal that holds that if you are harassed at work you may not have protection if you took part in that ‘banter’ yourself


It’s normally fairly safe to assume that employees don’t enjoy being harassed by colleagues at work. However that is not always the case where someone has taken part in ‘banter’ of a similar nature, even if they do so in a misguided attempt to fit in.

In Thomas Sanderson Blinds v English (No.2) Mr English complained of homophobic 'banter’ and sexual innuendo by his colleagues under the 2003 Regulations (now replaced by the Equality Act 2010). The Court of Appeal held that someone who suffers anti-gay banter at work, even though his colleagues know him not to be gay, was still protected by the Regulations.

The case was then kicked back to the original Tribunal, which upheld a claim about only one incident of harassment: an article about Mr English in the in-house magazine which prompted him to complain. This was ‘a tipping point’, and beyond what he felt to be an acceptable level of personal attack and insult. The tribunal rejected all allegations of harassment prior to that because Mr English had participated in banter and name-calling, had written similarly offensive articles himself and was apparently good friends with his ‘tormentors’. In the circumstances the conduct had not violated his dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for him. On appeal (again) the EAT held that in such a case the victim must reasonably feel his dignity to have been violated or an adverse environment created to succeed in a claim.

Jokey cultures at work can easily degenerate into harassment, in which the victim at first tries to play along in order to try and fit in and been seen as a good sport. Employees may find it harder to prove such claims following this decision. Employers and managers should be alert to prevent that kind of culture arising, and give clear guidance in their Equal Opportunities/Harassment policy to help victims in that situation.

James Carmody is an employment solicitor at Reculver Solicitors based in Central London EC1 and covering the City of London and Canary Wharf. For more information see our pages on discrimination at http://www.reculversolicitors.co.uk/discriminationclaims.htm  or for our Kent office covering Canterbury, Ashford, Whitstable, Sandwich & Herne Bay at http://www.kent-employment-solicitors.co.uk/discriminationclaims.htm