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Inspired by a night out over Christmas, one of our employment lawyers, Suzanne Brooks, discusses a conversation she overheard in the restaurant and how you can encourage employees to consider how they speak to colleagues, along with other measures to prevent the same thing happening in your workplace.
I was sat in a local restaurant over Christmas enjoying a festive night out. It was full of people of all ages but most of the waiting staff were young adolescents.
We were sat near the bar and I could overhear the conversations between the bar staff and the waiting staff. Imagine my horror when I overheard one of the older bartenders making a highly offensive comment to one of the young waitresses about her acne. It was loud – I could hear it, so could many of the nearby tables. The waitress was mortified and I felt mortified for her.
It struck me then how shocking that the bartender would regard such a comment as acceptable. “It’s only banter!” I expect he would say if challenged but actually, it’s more than that and it’s the sort of behaviour that might find an employer in the Employment Tribunal.
What is harassment at work?
Harassment is defined in the Equality Act 2010 as unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. So where is the protected characteristic here you ask?
Well, when you consider that over 95% of acne sufferers are aged under 25, the protected characteristic has to be age. Jokes about acne are no more acceptable than jokes about wrinkles or the menopause. The Equality and Human Rights Commission rightly points out that harassment can never be justified. However, if an employer can show it did everything it could to prevent its staff from behaving like that, there is a possible defence to a claim under section 109(4) of the Equality Act 2010.
What should employers do about harassment in the workplace?
A good start is putting in place a clear zero tolerance policy. This should give guidance on what is and is not acceptable behaviour in the workplace and make it clear that incidents of harassment will be treated as a serious disciplinary offence. In certain circumstances, harassment may amount to a crime.
Employees also need to understand what can amount to harassment and so training should be given on what the policy means– simply having a policy in the handbook is not enough.
Individuals should know how and to whom they can raise a complaint and that it will be dealt with seriously, sensitively and confidentially. Training for managers on how to handle complaints is also a good idea.
Seeking to prevent harassment by creating a diverse and inclusive workplace can be effective in minimising risk. Studies have shown that a diverse and inclusive workplace can help lower the risk of bullying, harassment and other forms of discrimination.
Finally, promoting a supportive and positive working environment which discourages “banter” is a recommended way forward and helps employers comply with their legal duty of care to protect the health, safety and welfare of their employees and provide a safe and healthy workplace.
It is worth pointing out that even if comments on an employee’s appearance do not constitute harassment, employers who don’t do enough to protect and educate their staff could find an employee resigning and claiming constructive dismissal or suffering from stress, depression and other mental health problems with the risk of associated claims.
Want to talk about this?
At Outset we have an experienced team of human resources advisors, employment lawyers and health and safety professionals all happy to provide advice, training and/or assistance with issues relating to harassment, discrimination and providing a safe place of work. If you would like to find out more or get help with the preparation of appropriate policies and their implementation. Please contact me or one of the team:
07562 662816 email@example.com
01622 759900 firstname.lastname@example.org