Harassment claims will fail where it is not reasonable for an employee to take offence
The Employment Appeal Tribunal (EAT) has upheld an Employment Tribunal’s (ET) decision to reject a harassment claim on the basis that the claimant employee (who had himself indulged in offensive conduct) could not reasonably be said to have taken offence at the conduct he complained about.
(The case concerns E, who is heterosexual but nevertheless complained of homophobic ‘banter’ and sexual innuendo by his colleagues. His claim of harassment ‘on grounds of sexual orientation’, under Reg 5 of the Employment Equality (Sexual Orientation) Regulations 2003*, was allowed to proceed by the Court of Appeal. It held that someone who suffers homophobic ‘banter’ at work, even though his colleagues know him not to be gay, is nonetheless protected by the Regulations.)
The Tribunal had accepted that one particular article, written for an in-house magazine, went too far and was a “tipping point”. However, they rejected all other allegations of harassment up to that point and particularly referred to the fact that E himself had participated in banter and name-calling and had written similarly offensive articles ‘riddled with sexist and ageist innuendo’. He had made no complaint before the referenced magazine article and, in fact, was good friends with his ‘tormentors’.
Consequently, taking account of E’s own ‘extremely offensive behaviour’, the tribunal concluded that he could not reasonably have considered that the conduct he now complained of violated his dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for him.
The EAT rejected E’s appeal and stated that in order to bring a successful harassment claim based on the effect of allegedly offensive conduct, the victim must reasonably feel or perceive his or her dignity to have been violated or an adverse environment to have been created.
In reaching its decision a tribunal should keep in mind whether the victim genuinely held that feeling or perception. The tribunal was therefore right to ask about E’s own perceptions and feelings in order to determine whether the effect of the unwanted conduct was to violate his dignity or create an adverse environment.
This is a sensible and practical approach by the EAT but it should certainly not be seen by employers as a licence to allow offensive behaviour by employees (irrespective of whether such behaviour could be seen as “give and take” or harmless banter).
* NB these Regulations are replaced by the Equality Act 2010. The relevant harassment provisions, which remain essentially the same, are at S.26.