Itsss meee Captain Questions– hope your all doing good. It is day 1 of my first week of doing 2 working days. So far so good- but perhaps ask me at COB tomorrow.
So, I was flying solo with parental duties at the weekend as my hubby was on a stag do in Benidorm for, wait for it, 4 nights/5 days. Yes, you heard me correctly. He got back yesterday night and I am officially death warmed up, I feel like I am running on empty and its not even the end of the week. But we some how do it don’t we?
But Halle and I did some cute things whilst he was off enjoying himself. We experienced soft play for the first time- not realising some schools had broken up. That was… interesting. Although very good for Halle to roam and cruise around, it honestly was a mad house. Kids ducking and diving everywhere, stepping over Halle, crying, laughter, screaming…I learnt a lot. Although I left feeling slightly shaken up, I feel it is something that I am hoping I will learn to love for Halle’s sake.
Halle also went to her first ever birthday party for one of her friend’s 1st birthday. It was super cute and very much made me realise that we are very much nearly there with her. This party was next level- soft play for the kids, a play set, none stop bubbles (a requirement of any baby’s party), sand pit, lots of toys for them to play with and copious amounts of yummy food. Her parents had completely outdone themselves and are actually superheroes in my mind!
At that moment I had the realisation of the world I was now part of and how I better get a skedaddle on with Halle’s birthday plans.
Anyways let me put birthday plans to the back of my mind for a minute and get onto what we’re all here for: employment law!
Although we don’t want to keep ranting on about it, the topic I want to update you on is to do with banter in the workplace. Now we have spoken before on the risks of banter in the workplace – What to do if you’ve been punkd and Lets do it lets deal with sexual harassment , but the topic this time will be more specifically aimed at the risks of relying on banter as a defence against sexual harassment.
In the recent case of Bratt v JGQC Solicitors Ltd, a legal secretary, Megan Bratt, (truly, it is a Brat summer) won her sexual harassment claim against her boss who was found to have made remarks that were sexual in nature, therefore creating an intimidating environment, and tried to rely on the fact his comments were ‘banter’.
To give you some brief background on the case, Miss Bratt raised a claim against her employer following a series of incidents involving the owner of the law firm, Mr Hall. The incidents included Mr Hall telling Miss Bratt she ‘looked nice’, which may at first glance seem friendly in nature but having considered Miss Bratt’s response and messages to her boyfriend the Tribunal found it to be sexual in nature. It was also one example of many other comments that were said to Miss Bratt, which when all taken together gave the Tribunal a clearer picture on the kind of working environment she was in. Mr Hall also subjected Miss Bratt to inappropriate images (women in lingerie in “provactive” positions on his Facebook account which she helped install on his phone/a video of his girlfriend in a “provocative” position) and spoke to her about inappropriate things (that he found his ex-girlfriend cheating on him with a 22 year old police officer and there being a used condom on the floor).
Mr Hall’s defence to the above was, you guessed it, that it was ‘banter’.
As we know, under the EqA 2010 sexual harassment is defined as unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating and offensive environment.
The Tribunal found that Miss Bratt was subjected to an ‘offensive environment and arguably an intimidating one’. They also rebutted the defence of ‘banter’ for such actions stating that ‘it is immaterial whether the conduct is acceptable to others or is indeed common in the workplace’. They continued to say that labelling conduct as ‘banter’ ‘does not make it nonetheless unwanted conduct of sexual nature’.
Remember: it’s not just about what the perpetrator intended by their conduct. The effect of the conduct is also important and to assess that effect a tribunal has to take into account the victim’s perception and the wider circumstances of the case, before deciding whether it is reasonable to say the conduct had the effect prescribed in the Equality Act 2010.
This case not only serves as a timely reminder of the importance of addressing sexual harassment in the workplace (particularly with changes to the Equality Act and harassment provisions specifically fast approaching) but is also a stark reminder of how risky it is to try to rely on ‘banter’ as a defence.
Now, as I have mysteriously referenced above, if you have been on it with our blogs you will have, hopefully, seen that something new will be coming into force in October is the fact that there will be a new legal duty for employers to take ‘reasonable steps’ to prevent sexual harassment in the workplace End of Year Blog – 2024 the year of big changes
So how does an employer show that they have taken ‘reasonable steps’ to prevent sexual harassment? I have popped some pointers below:
- Make sure staff feel comfortable enough to raise any complaints that they may have. You can achieve this by ensuring you have an effective system in place for them to disclose their complaints, ensure the working relationship is good and there is good communication.
- Make sure it has been clearly communicated to staff what the system for making complaints is.
- Arrange regular training for all staff on harassment as well as diversity, equality and inclusion. Without tooting our own horn- we provide great training on these topics so give us a shout if you feel this is needed. What do we always say? Training training training!
- Keep up to date on any new legal updates- cough cough- ensure you read our blogs, attend our amazing events and sign up to our mailing list [LINK HERE]
- Should a complaint come in, ensure that you conduct a comprehensive investigation.
- Ensure you have comprehensive policies and procedures in place and that they are kept up to date and easily accessible.
As you can see, it is more important than ever for employers to be ahead of the game and by taking on board our above tips you will ensure that you are being proactive and in a strong position should a claim come your way.
As always, if you have any questions on the above or anything else then you know where we are.
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