If you dish it out, you have to be prepared to take it

Banter.  Now there’s a dangerous word that strikes fear into the hearts of HR and employment lawyers alike.  When is banter acceptable and when does it become actionable? A case that hit the headlines (well ok, may be just the legal headlines) on a landmark legal point has reached the EAT who confirmed that the Tribunal was right to reject the employee’s claim for harassment based on his own behaviour.

Thomas Sanderson Blinds was described by the Tribunal as “a truly horrid place to work”. Mr English, who everyone knew was not gay, complained that he had been the subject of homophobic banter and generally harassed by other employees.  Matters came to a head when Mr English’s family saw an article about him in the in-house magazine which he then claimed he found offensive. 

The problem Mr English came up against was that he was part and parcel of an environment at work where it was acceptable for the employees to be generally offensive to each other.  He too had written similar articles for the in-house magazine which meant that the tribunal simply did not believe him when he said he had been harassed.  The fact that he remained good friends with those who had harassed him further undermined his claim.

So what can we take from this case?  Probably two main points.  As an employer defending a claim of harassment, you can try to rely on the part played by the employee himself.  But secondly, do you really want to be the company facing that type of criticism from an employment judge?!

Created 8 April 2011