Banter between colleagues is often regarded as normal behaviour between colleagues. Any effort to stamp out banter can be seen as a killjoy measure, and prove counter-productive. However some kinds of banter can be very hurtful to individual employees who may be reluctant to express their concerns. Banter on grounds of sex, race or disability can lead to grounds of harassment or discrimination for which the employer is legally liable.
For both management and legal reasons, employers should not ignore the consequences of workplace banter. A recent case provides some useful guidance in the context of sexual banter.
The case concerned a female line consultant and a senior male colleague. She alleged sexual harassment in a course of conduct of which two incidents were particularly highlighted. One was the following exchange about dealings with a client:
“Oh dear, am I in trouble?”
“I can get you into trouble.”
“I can get myself into enough trouble, thank you.”
“The sort of trouble I am thinking about, you could not get yourself into.”
The other incident was when she was to be interviewed for promotion and was told by him to wear a short skirt, a see-through blouse and to persuade him to give her the job. She made no complaint at the time. When she attended the interview, more modestly dressed, she apologised for not wearing the suggested clothes and was told, “well, that will have to do then, would you like some tea?” She said that her remark was designed to promote an apology for his improper remark.
She resigned and complained of sexual harassment. The employment tribunal dismissed her claim. It held that the remarks were obviously jocular, she had suffered no detriment, and had failed to express any objection at the time.
The Employment Appeal Tribunal reversed this decision. When harassment is alleged, the course of conduct as a whole must be considered. Although an incident viewed on its own may be trivial, collectively they can amount to harassment. It is wrong to make assessments of individual incidents. The tribunal should then consider whether the remarks are discriminatory and what explanation is offered by the employer.
In terms of the employer’s position, the following points were noted:
- incidents should not be considered individually, but collectively;
- all such complaints should be taken seriously, properly investigated, and allow all those involved an opportunity to explain their position;
- the absence of complaints should not be taken to indicate an absence of a problem. In particular, allowance must be given to the fact that a victim may feel inhibited about making such a complaint;
- sexually explicit banter between men and women was much less acceptable than between two men;
- the fact that other employees are not upset is no defence;
- the intentions of the perpetrator and the perceptions of the victim are relevant;
- a woman has suffered sexual harassment if her dignity is undermined or if she feels intimidated. She does not have to show financial loss or impairment of career prospects.
In this case, the fact that the male colleague clearly had no serious intention of making any sexual advance nor had he any serious expectation that she would attend provocatively dressed did not excuse his conduct. His conduct undermined the woman’s dignity, and that was sufficient detriment.
Driskel v Peninsula Business Services Ltd. EAT 2000 IRLR 151.
[2000]