Harassment

In the recent case of Thomas Sanderson Blinds v English, the EAT considered the situation where an individual who alleges harassment deals similar offensive banter out themselves.

It found that, although there is no hard and fast rule, and it will depend on the facts of the case, the individual will need to show that:

• the conduct was unwanted; and
• the conduct had:
  
  
  • the purpose; or
  • the effect
    
    
  of violating the individual's dignity or creating a hostile and degrading environment for them.

The EAT held that in that scenario, where work colleagues exchanged offensive banter while remaining genuinely good friends, the tribunal was entitled to find that the conduct directed at Mr English could not have had the purpose or effect of violating his dignity or creating a hostile and degrading environment for him.

However, although the EAT did not say this, it is possible that its decision was influenced by the fact that the first time Mr English complained about the homophobic banter was the day after he had been given a formal warning for poor performance.

It will be recalled that this case has already been to the Court of Appeal, when Mr English was successful in arguing that, as a matter of legal principle, you can be harassed on grounds of sexual orientation even if you are not gay and everyone knows that you are not (the only reasons why Mr English was subjected to homophobic banter was that he was a public schoolboy and lived in Brighton). In theory, yes, but not, the EAT has now opined, in practice on this occasion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.