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    Harassment – Has workplace banter been banned?

    It’s been reported that the new Equality Act 2010 bans all workplace banter; if it occurs, you could be sued! Is this really true or just another media myth?

    Media hysteria? The Equality Act 2010 is finally in force.  Apart from consolidating equality-related legislation, it’s introduced some new rights around discrimination. One is the extension of “third party harassment”.  Parts of the media claim that this is the final nail in the coffin for any type of workplace banter.  Is this right?

    New definition.  Under the Act, harassment occurs where “A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B”.  It’s been said that this means a person who overhears a joke they don’t like, e.g. about a colleague’s sexual orientation, could sue you.

    Protected characteristics. Luckily, it’s not that straightforward. In order to succeed, the harassment must be due to a “protected characteristic”. For example, the harasser wrongly believes that the victim holds a certain religious belief, or they associate with someone who does. In practice, this won’t be easy to prove.

    Did you know? Also, in order to be liable, you must know the employee “has been harassed in the course of employment on at least two occasions by a third party”.  So the reports that one occasion is sufficient for a claim are totally inaccurate.  Finally, any banter must be extreme in nature; normal Mickey taking won’t amount to harassment.

    Tip. Off the back of misleading reports, some staff might see the Act as an easy source of compensation.  Reduce the risks by ensuring that your equal opportunities and dignity at work policy is up-to-date and includes a robust section on third party harassment.  Also, encourage staff to report any genuine incidents quickly so that problems can be nipped in the bud.

    “Tips & Advice Personnel” Issue 19: 28.10.10