On average in our lifetime, we will spend 99,117 hours at work – that is the equivalent of 11 and a half years of continuous hard graft. It should be noted that 92 of these hours per year is spent making tea, but I’m not here to talk about a good old English cuppa. The point is that we spend a huge proportion of our lives at work, often spending more time with our colleagues than we do our partners.
Having a working environment in which staff feel comfortable and content is therefore paramount to employee wellbeing and productivity. It goes without saying this should be an environment free from bullying and harassment.
With the prevalence of the #MeToo movement, sexual harassment in the workplace is a topic which is very much centre of attention. A ComRes poll for BBC Radio 5 Live in October 2017 (surveying 2,031 adults) found that 53 per cent of women and 20 per cent of men (said they had experienced sexual harassment at work or a place of study.
But with sexual harassment dominating the headlines, our knowledge and awareness of other forms of workplace harassment may have slipped. When we talk about harassment we think about Weinstein, Phillip Green, Ted Baker’s “forced hugs”. But what about office banter, one-off comments and gossiping? It’s important to not lose sight of the scope of law in this area as you do not want to be caught out.
A quick recap
Harassment is behaviour that violates an individual’s dignity by creating a working environment that is:
based on one or more of the protected characteristics, such as someone’s gender, race, age, sexual orientation or age.
Here are a number of cases showing real life examples of harassment in the workplace. Crucially, in all of these cases, employers were liable for actions of their staff with the tribunal often calling out companies who had not provided sufficient training to staff on equality and diversity issues.
It is a common myth that a one-off comment cannot amount to harassment. It can. Remember, in this area of the law intention is irrelevant. If someone is offended by something someone says, even if it’s just once, they can still bring a claim for harassment.
In Clements v Lloyds Banking Plc, an employee was told by his manager; “well you’re not 25 anymore” when discussing performance. This one-off comment was found to be harassment and discriminatory on the basis of age.
In Bivonas LLP and others v Bennett, a partner in a law firm had written a note on the file, describing the Claimant’s colleague as “his batty boy mate”. The Claimant was gay and won his claim for harassment on the basis of sexual orientation discrimination. In the case, it did not matter that this was a one-off, isolated incident, involving a personal note that the partner had no intention that anyone, let alone the Claimant, would see.
Similarly, in the case of Austin v Samuel Grant (North East) Limited, a male employee won a claim for sexual orientation harassment when he was told by colleagues that he “must be gay” because he didn’t like football. The tribunal found in favour of the claimant even though he was not gay, as his perceived homosexuality from this comment, meant he was protected by the Equality Act.
Another common myth is that employers are no longer responsible for actions of their employees outside of working hours. Be warned, liability extends to after work events and even their after parties!
An example of this comes from the case of Furlong v BMC Software Limited. Following a company event in Nashville, members of the team visited a “Coyote Ugly” bar. The Claimant did not attend as she felt uncomfortable attending a lap dancing bar, when her colleagues had openly been speaking about lap dancing and prostitutes throughout the trip. It did not matter that the trip to the bar was outside of working hours and not organised by the company. The Claimant’s claims for sexual harassment were upheld.
Beware of Banter
Office banter; it’s all good fun that makes the day go quickly, right? Be warned. To claim that harassing comments are “just banter” may not be a defence, even where the Claimant is found to take part in the banter, to some extent.
An example of this comes from the case of Minto v Wernick Event Hire Ltd. In its judgement, the tribunal said; “‘Banter’ is a loose expression, covering what otherwise might be abusive behaviour on the basis that those participating do so willingly and on an equal level. It can easily transform into bullying when a subordinate employee effectively has no alternative but to accept/participate in this conduct to keep his or her job.”
The case of Basi v Snows Business Forms Ltd provides a good example of this. Even though the tribunal noted that the office environment was one of “healthy banter” this banter “spilt over to racial harassment” when the Claimant, who was of Indian origin, was called a “cheeky monkey” by his colleague.
If you work in an environment free from office politics and gossip, you are very much in a minority! Humans love to talk about other humans and as work is where we spend a huge proportion of our time, gossiping is inevitable, but it comes with risk.
Returning again to the case of Furlong v BMC Sortware Limited, the Claimant was subjected to rumours that she was having an affair with a married male colleague. It did not matter that this rumour was not true, the tribunal found that this created an intimidating and hostile environment for her, and she succeeded in her claim for sexual harassment.
So beware of those 92 annual hours your staff spend making tea! The staff kitchen can become a hotbed of gossip and whispers.
If you would like to know more about how to combat harassment in your workplace, speak to a member of the employment team at Clarkslegal LLP, who offer a variety of training on workplace harassment, equal opportunities and diversity to prevent such instances from occurring.
15th April 2019