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Wolf-whistling – harmless banter or harassment?

19/10/2016

Actress Joanna Lumley says it’s a compliment but some people aren’t so sure.

Once a common sound emanating from building sites, it was wolf-whistling that drove a woman to report builders to the police in Worcester last year.

The police said it was a matter for the men's employers. One of the builders involved called it "a bit of banter" but there is no such thing as harmless banter, said Julia Fitzsimmons, an employment law expert and Partner with FBC Manby Bowdler.

“One employee’s joke can be unwanted offensive conduct to another member of staff and if the joke meets statutory definition of harassment then the victim may bring a claim against both the perpetrator and the employer so it’s something that employers do need to be aware of.

“Banter would qualify if it violates the other employee’s dignity or creates an intimidating, hostile, degrading, humiliating or otherwise offensive environment for the other employee and is related to the employee’s gender, race, religion disability, sexual orientation, age or is on the grounds of gender reassignment or marital or civil partnership status.”

It doesn’t even have to be a sustained course of conduct - a one-off incident can amount to harassment and the victim doesn’t have to have made the perpetrator aware that the conduct was unwanted.

Julia explained: “For example, an office of male colleagues download pornography on their computers in an office where a woman works. She can make a claim for harassment if she is aware the images are being downloaded and this creates a hostile working environment for her. It doesn’t matter that the male colleagues considered that they were simply ‘having a laugh’ and she didn’t tell them she was upset nor ask them to stop.”

If you have staff, where do your responsibilities start? An employer is treated as liable for the acts of its employees regardless of whether the employee’s acts were done with the employer’s knowledge or approval. 

You can defend such claims if you can show that you took all reasonable steps to prevent the discriminatory banter. 

Reasonable steps would usually include:

Having, and implementing, an equal opportunities policy and anti-harassment and bullying policy. Keep these under review and make sure managers are trained in the procedures

Making sure all employees are aware of the policies and their implications

Training managers and supervisors in equal opportunity and harassment issues

Taking steps to deal effectively with complaints, taking appropriate disciplinary action

Issuing a guide to employees as to who they can speak to should they feel harassed intimidated or bullied.

Julia added: “The consequences of turning a blind eye to banter can be costly for an employer as compensation for discrimination is potentially unlimited. Not only that, the negative PR of having a discrimination claim brought against your organisation or losing a claim could impact negatively on future contract negotiations as well as affecting your reputation.”

If you’d like advice on your responsibilities towards staff on any employment-related issue please contact our specialist Employment Team based in the Black Country and Shropshire.

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