For November 2024, we have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?” 

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims for discrimination, constructive dismissal or some other serious difficulty.  

This month’s problem concerns: 

"We have an employee who continues to engage in ‘banter’ with his colleagues and some of his ‘jokes’ have been reported as sexually inappropriate by his female colleagues. How do I handle it?”     

The term ‘banter’ has come under much scrutiny in the workplace and it can be difficult to determine where banter crosses the line from harmless to harmful behaviour. Views on what is acceptable in the workplace vary but ultimately, offence is in the eye of the beholder.  

In this case, the complaints have come from female colleagues (“the complainants”) and there is a risk that the employee’s behaviour could amount to sexual harassment. The legal definition of sexual harassment is “unwanted conduct” which is related to someone’s sex, or any “unwanted non-verbal or physical conduct of a sexual nature” which has the “purpose or effect” of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. 

This definition will be met if the employee’s intention or purpose was to have this effect. However, it is more common that the employee will not have intended their actions to have a negative impact, as they viewed them as “banter,” and you will then need to consider their “effect” on the complainants.  

Intent vs effect

In short, while the purpose of the jokes may have been innocent, their effect can still constitute sexual harassment. When making this assessment, a tribunal would consider whether it was reasonable, in all the circumstances and including the particular complainants’ perception, for the jokes to have this effect on them. This means there is some allowance for situations where it was unreasonable for a complainant to regard the effect of a joke as amounting to sexual harassment.  

The general position is that an employer is vicariously liable for the actions of their employees in the course of their employment. Usually, this means the employer is liable if an employee sexually harasses a colleague in their workplace, during working hours, at a work event or in the discharge of their duties. Employers can raise a defence that they have taken “such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.” This is often referred to as the statutory or reasonable steps defence.  

Great Britain - Reasonable steps to prevent sexual harassment

From 26 October 2024 employers in Great Britain have a general statutory duty to take reasonable steps to prevent sexual harassment of workers in the course of their employment. This is a proactive rather than reactive duty, much like an employer’s health and safety obligations. This change does not extend to Northern Ireland yet, although it may be introduced in the future.

This means that, for example, if the employee made these jokes to their colleagues in the staffroom during working hours, you could be liable for their actions in the event that the complainants make sexual harassment claims.  

Practical guidance

As a starting point, if you have not already, you should meet with the complainants to ensure you have a full understanding of their complaints. You may have a specific harassment policy which you should follow. Otherwise, these complaints can be dealt with under your grievance procedure.  

When speaking with the complainants, you should bear in mind that sexual harassment can take many forms, can be physical or verbal and increasingly, takes place online such as via messages, chat platforms or email. Speaking with the complainants will help you understand the nature of the allegations and where the incident occurred, and you should consider next steps in line with your sexual harassment policy. This may depend on whether the complainants want to pursue their complaints, and if they will only proceed if their anonymity can be guaranteed. This creates complex issues and usually, you would not be able to investigate and deal with the employee’s conduct if the complainants want to remain anonymous.  

If the complainants do want to proceed, you should carry out an investigation. This will usually involve meeting the employee themselves to discuss the complaints and take their view on the purpose or intention of their statements. There may be other evidence such as CCTV, witness or documentary evidence.  

If your investigation establishes that sexual harassment has occurred, it would normally be handled as a disciplinary issue. You should consider whether informal or formal action is required, though it will often be the latter. This will depend on the severity of the circumstances and the complainants’ preferences. Informal resolutions may include the employee apologising to the complainants or attending awareness training. You should also consider the employee’s disciplinary record and if there have been previous relevant complaints – in which case, formal action may be necessary.  

It may be appropriate to suspend the employee or reassign them away from the complainants (if possible) until the conclusion of the disciplinary process. This can help prevent any further instances of harassment or victimisation occurring. If following your investigation, the misconduct is sufficiently serious, you may have grounds to dismiss the employee for gross misconduct. As always, any disciplinary process should be transparent and carried out in accordance with your disciplinary policy.  

More generally, there are various practical methods which can help mitigate the risk of claims for sexual harassment. For example, you could promote a positive workplace and “zero-tolerance” approach to sexual harassment. It is helpful to have robust sexual harassment and disciplinary policies in place, together with clear reporting procedures for employees to allow them to confidently report instances of sexual harassment. Some employers use third party reporting tools which allow employees to make complaints which are then referred to their HR team. You could provide sexual harassment awareness training during their induction and then at regular intervals and can monitor workforce attitudes towards sexual harassment by conducting surveys and exit interviews.