“It was only banter!” is a line often given to justify or excuse having offended somebody. But this line isn’t a licence to offend as, regardless of whether the intent to offend is there, offensive comments are inexcusable in the workplace. A no tolerance policy is the best way of minimising problems with bullying and harassment, but there can still be times when employees take offence at certain remarks.
We recently conducted a survey to find the most offensive comments overheard in the office. Needless to say, the results were shocking. Many of the comments appeared to be in the form of jokes and not directed or premeditated attacks, but this doesn’t change the potential for offence these comments have.
One thing employers need to be aware of is the full legal definition of ‘harassment’, as it is often misunderstood or used as an umbrella term for anything that causes offence in the workplace.
Instead, harassment only applies when a protected characteristic forms part of the complaint. A protected characteristic (as many of you are likely to know) pertains to any of these categories, in accordance with the Equality Act 2010:
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Religion or belief
• Sexual orientation
So, some of the survey’s genuine responses, such as: “If she’s pregnant she obviously doesn’t want a career”, “You can’t contribute, you’re only 20” and “Bisexuals are just greedy” could certainly lead to harassment claims.
However, if a complaint relates to something outside of the above, it can still be considered as bullying and brought to task. Responses such as “Why is he so angry? Must be ginger rage!” and “Eat your lettuce and shut up!” still have the potential to cause significant offence and result in an unpleasant working environment. This can lead to high staff turnover rates, especially if employers fail to actively deal with the culprits, or even legal cases. Employers are obliged to provide a safe and stress free environment, so failing to do so can amount to a breach of contract and give grounds to an employee to raise a constructive dismissal claim.