Or was it?

You can still have a joke on or after 26th October! However,

This Saturday -October 26th is the day when the new UK Preventative Duty on Sexual Harassment comes into force. It’s a preventative duty which rather like a health and safety policy requires all employers to make a risk assessment of any potential areas for sexual harassment.

Potential risk areas identified by the Equality Commission include:-

·???????? Power imbalances

·???????? Lone working

·???????? Presence of alcohol

·???????? Seasonal workplace events

·???????? Customer-facing duties

·???????? Events that raise tensions locally or nationally

·???????? Lack of diversity in the workforce

·???????? Workers being placed on secondment

·???????? Inappropriate text and WhatsApp messages

·???????? Personal relationships at work.

?https:// www.equalityhumanrights.com/guidance/consultation-technical-guidance-sexual-harassment-and-harassment-work#new-guidance-section-the-preventative-duty

If a claim is successful under any of these heading, it can result in a big bill for the employer, as well as reputational damage. And the result now of the employer not anticipating and identifying any risk areas ?including banter will attract the attention of the Equality Commission who have power to publicly enforce the Preventative Duty

In other words, it will not just be an individual case that can trigger legal action but also the failure to anticipate and reasonably prevent any detriments that might arise from the indicative headings above. The Commission are not suggesting that these factors will be prevalent in all workplaces.

Your own workplace intelligence and experiences may have variations or additions to these listings. The key point is that the listings are a good starting point for risk impact assessments based on your workplace and service culture. Don’t forget third parties such as customers/stakeholders etc must be drawn into your consultation and involvement plans to address risk. ?

What about Banter?

Equality Commission guidance has also helpfully signposted examples of verbal, non-verbal and ?physical conduct which should not be acceptable in the modern work place. ?Examples of verbal conduct include:-

·???????? Malicious Banter

·???????? Mimicry

·???????? Comments on a worker’s appearance

·???????? Sexual comments, stories, jokes or pranks

·???????? Repeated and unwanted social invitations for dates or physical intimacy

·???????? Condescending or paternalistic remarks

·???????? Sending/sharing sexually explicit messages/images

Risk Assessing Banter

The crucial point to be aware of is that the effect of discrimination and harassment is assessed subjectively, i.e., from the claimant's point of view. Just because one person thinks a certain remark is hilarious and clearly only intended as a joke, it doesn't mean that everyone does. Any individual who heard the remark and found it offensive might bring a claim against their employer, and in the eyes of the law it is usually their view that matters.

·???????? In the case of Mrozinski v Q Medical Technologies Ltd ?-Two ?acts of “banter”, including a suggestion by the claimant's line manager that she should dress seductively for a client meeting in order to secure business, made the claimant uncomfortable and embarrassed, and so was found to constitute harassment. An award of ?for injury to feelings was made.

·???????? In Minto v Wernick Event Hire Ltd, a female employee, M, was subjected to daily remarks that were of the same sexual nature as the theme of the “Carry On” films. Her manager gave evidence that banter, including strong language, was an everyday fact of life. The tribunal found that this amounted to sex discrimination and harassment. The Employment Judge held that “‘Banter’ is a loose expression, covering what otherwise might be abusive behaviour on the basis that those participating do so willingly and on an equal level. It can easily transform into bullying when a subordinate employee effectively has no alternative but to accept/participate in this conduct to keep his or her job.”

Risk Assessing and Managing Banter

Clearly the existence of banter in the workplace can be dangerous for employers. It is therefore advisable to NOW revise your ?anti-harassment and equal opportunities policies in place, and to ensure that these policies cover all aspects of the Preventative Duty? OR that you decide to create a stand-alone PREVENTATIVE ?policy and procedural guidance.

Employers should train their employees about their obligations under the revised policies, and as part of this training should consider giving examples of precise banter which would be considered unacceptable.

As a final point, employers should ensure that they are extremely direct with employees about the potential consequences of engaging in banter that oversteps the mark.?

We can assist with training and policy guidance in all these areas including the other two categories of non-verbal and ?physical conduct that should be unacceptable in your place of work.

www.qedworks.co.uk

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