Harassment or Banter

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I have acted on behalf of employers defending harassment claims for many years.  The word that makes me shiver when speaking to a client who is facing a claim of harassment is the word “banter”.

There is a very fine line between one person’s banter and another’s and what often starts as a two-way affair often quickly degenerates with one of the parties feeling out of their depth.

To be clear on the definition harassment is any unwanted physical, verbal or non-verbal conduct that has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

A one-off incident can amount to an act of harassment.

Harassment can also include treating someone less favourably because they have submitted or refused to submit to such behaviour in the past. We often find this happens when for example a workplace relationship has gone sour and one of the parties is in a position of authority.

Harassment may also involve conduct of a sexual nature (sexual harassment), or it may be related to age, disability, gender reassignment, marital or civil partner status, pregnancy or maternity, race, colour, nationality, ethnic or national origin, religion or belief, sex or sexual orientation. These are what we call protected characteristics.

Really common examples of harassment are:

(a)            unwanted physical conduct or "horseplay", including touching, pinching, pushing and grabbing;

(b)           continued suggestions for social activity after it has been made clear that such suggestions are unwelcome;

(c)            sending or displaying material that is pornographic or that some people may find offensive (including e-mails, text messages, video clips and images sent by mobile phone or posted on the internet);

(d)           unwelcome sexual advances or suggestive behaviour (which the harasser may perceive as harmless);

(e)            racist, sexist, homophobic or ageist jokes, or derogatory or stereotypical remarks about a particular ethnic or religious group or gender;

(f)             outing or threatening to out someone as gay or lesbian;

(g)           offensive e-mails, text messages or social media content; or

(h)           mocking, mimicking or belittling a person's disability.

Did you also know that a person may be harassed even if they do not have the relevant protected characteristic but if for example racist comments and jokes create an offensive environment for them.

As an employer we advise that you consider regular training for your employees and line managers.

Claims of harassment amount to discrimination claims which are unlimited in value compensation wise and which also attract an injury to feelings award which is now banded up to £42k.

Employees can also be personally liable for acts of harassment and named individually in proceedings.

With all this in mind, can you afford to put off training your employees?

If you need any help or assistance with an ongoing ET matter or would like to engage with us on our training sessions please contact the team on 01133229222 or enquiries@consilialegal.co.uk.

Contact Marie

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