Nothing strikes dread into the heart of an HR specialist or employment lawyer more than hearing or reading these words. In a similar way, nothing good tends to follow the words “I’m not racist/sexist but…” Even where there is no malicious intent or it can be shown that the audience or receiver of the comment did not apparently take offence, these are still risky remarks and situations that an employer should not leave unaddressed. Indeed, given the legal liabilities that can be triggered, inclusion and dignity at work (not to mention risk mitigation) need to be proactively tackled.
One of the common misconceptions is that banter is always “harmless” and to be expected as part of day-to-day working life. With workplaces becoming more diverse, the line between what is offensive or potentially harassing and what is acceptable becomes harder to define. And, of course, people have different sensitivity triggers when it comes to what they object to.
Nevertheless, comments and banter cross a legal line between being acceptable and unacceptable if, amongst other things, they relate to a protected characteristic and either (a) their purpose or effect is such as to create an environment which is intimidating, hostile, degrading, humiliating or offensive or (b) they violate the other person’s dignity. (Protected characteristics are defined under the Equality Act 2017 and, for these purposes, refer to age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.)
Whilst the scope for potential issues is obvious, employers don’t usually relish intervening and “policing” conversations between grown adults, nor do they want to make the workplace so sterile an environment that it’s joyless and devoid of humour. The point is that the joke should not be at someone else’s expense or dignity.
There has been a slew of recent cases that illustrate some of the pitfalls and consequences for employers of not tackling or taking all reasonable steps to avoid discrimination and harassment occurring at work. Besides the Equality Act 2017 provisions, allowing bullying of any sort to go unchecked or neglecting to take complaints seriously can lead to a breach of the implied duty of trust and confidence and, in turn, constructive dismissal claims.
Caselaw
Matthew Davies v White Doves Garage (August 2025)[1]
The Employment Tribunal in this instance upheld claims of harassment regarding overheard misogynistic remarks and comments about homosexuality and sex, even though they were not directed at the complainant and were framed as jokes. In doing so, the Tribunal found that the complainant was entitled not to be subject to an offensive working environment and that the remarks amounted to unwanted conduct of a sexual nature.
Moore v Sean Pong Tyres Limited (February 2022)[2]
The complainant was successful in showing that he was subject to unlawful discrimination related to age and race as a result of which he resigned and claimed constructive unfair dismissal. The discriminatory conduct consisted of a black colleague calling him “a lazy old white guy” and making other, similar, abusive comments about which he complained, but which his employer brushed aside as “banter”. Even though there was some evidence that the complainant responded “in kind” to the comments, the Tribunal held that his colleague’s conduct was intimidating and noted that the complainant had taken steps to try and bring it to an end. At hearing, the complainant was awarded just over £22,000 of which £13,675 was for injury to feelings.
English v Thomas Sanderson (2008)[3]
In this case, which ultimately went to the Court of Appeal, it was established that a person can be subject to unlawful harassment where it is wrongly assumed that they have a relevant protected characteristic. The complainant was found to have been tormented by homophobic banter even though he was not gay. In the judgment, it was observed that the treatment the complainant suffered was a “calculated insult to his dignity” and that the incessant mockery (“banter”) had created a degrading and hostile working environment.
Key points
The following points arising from the caselaw are worth emphasising:-
- an employee does not necessarily have to have the relevant protected characteristic for harassment to occur (additionally, it can occur by reason of an employee’s connection to a person with a protected characteristic, e.g. disability or race – i.e. “harassment by association”);
- whether specific conduct gives rise to “harassment” depends on if it was intended to have the effect of violating a person’s dignity or creating an intimidating etc. environment (this will be harassment) or it was not so intended (in which case the Tribunal will need to consider whether the conduct in question should reasonably be considered as having that effect and will take into account the complainant’s views);
- “banter” can still be actionable as a claim even if the intention behind it is not malicious – what counts is impact over intent; and
- silence/the absence of immediate objection does not equal acceptance and even if the “banter” is two-way that does not automatically prevent a claim by one of the parties succeeding.
How can employers protect themselves?
Employers can rely on an “all reasonable steps” defence to claims of vicarious liability (that is, for harassing or discriminatory acts of one employee committed towards another employee in the course of their employment). However, the bar is higher than “reasonable efforts” and, for an employer to successfully defend a claim, it generally requires that they:
- provide training on harassment (including refreshers at appropriate intervals);
- issue guidance on – and reinforce – boundaries of professional behaviour (it is particularly important that managers are held to high standards of conduct as a Tribunal is likely to take a dim view of any conduct which is apparently sanctioned by them or acquiesced in on the basis that it “sets the tone”);
- act quickly and take complaints seriously if brought to their attention (also follow up subsequently to ensure that any agreed “rules” or modified behaviours are maintained and do not “slide”!); and
- have a trusted and effective means of reporting complaints and unacceptable workplace behaviour
In addition, having a dignity at work/anti-bullying and harassment policy will be important in setting clear expectations around workplace culture and respect for others.
Cains’ employment and data privacy team provides training on all aspects of employment law including risk minimisation in such areas as discrimination and harassment. Contact us for further information.
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References:-
[1] Matthew Davies v White Doves Garage (August 2025)
[2] Moore v Sean Pong Tyres Limited (February 2022)
[3] [2009] IRLR 206
