Legal Thought Leadership

‘Banter’ is not a defence to sexual harassment despite what Philip Green may think

November 2, 2018

Sexual harassment has hit the headlines again after Peter Hain outed Sir Philip Green as the businessman who obtained an injunction preventing The Telegraph reporting allegations of sexual harassment against him. What lessons can we learn from this latest episode about the myths that still surround sexual harassment? 

One of the most remarkable things on the recent furore surrounding Philip Green and the allegations against him of sexual harassment is that he sought to dismiss them as banter. “I’ve been in business for more than 40 years,” he said to reporters questioning him about the allegations. “There has obviously from time to time been some banter and a bit of humour, but as far as I’m concerned there was never any intent to be offensive.”

Ah, the old ‘banter’ defence. The idea that you can brush off any suggestion of impropriety by suggesting that the target of your humour is unable to take a joke.

‘Just a bit of banter’

He is by no means the first person to try this tack. A couple of years ago, the TUC published a report on sexual harassment in the workplace in conjunction with the Everyday Sexism Project. The report opened with the following sentence: “How many times have we heard sexual harassment in the workplace dismissed as ‘just a bit of banter’? It may seem like a joke or even a compliment to those who have never experienced it – but those who have will know just how undermining, humiliating and sometimes terrifying it can be.”

The report reveals that 32% of women have been subject to unwelcome jokes of a sexual nature. In addition, 28% of women have been subject to comments of a sexual nature about their body or clothes. Both are typical examples of what some consider to be simply ‘banter’.

Little has changed despite #MeToo

Two years since the report was published, despite #MeToo and despite the widespread reporting of the allegations against Harvey Weinstein little has changed relating to sexual harassment. It seems amazing that someone as experienced in business as Philip Green should seek to brush off the allegations against him in this off-hand manner.

The banter myth, (and it is just that), is one of several that continues to persist. Let’s consider a few others, but first it is worth looking at what sexual harassment is. Sexual harassment is defined as “unwanted conduct of a sexual nature, that has either the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”. I wrote recently in detail about the difficulties of bringing a sexual harassment claim in the workplace and that blog sets out the legal position in a bit of more detail.

8 myths about sexual harassment

Here though, for the benefit of Sir Philip Green and anyone else unsure of what types of behaviour fall within the definition, is a non-exhaustive list of other sexual harassment myths.

  1. Only the person to whom the banter (“unwanted conduct”) is directed can make a claim. This is wrong. The TUC report states that 35% of women have heard comments of a sexual nature being made about other women in the workplace. Any one of this 35% would be in a position to bring a claim even though they weren’t the subject of the banter. This is not limited to women; a man who hears a comment about a colleague (male or female) can also bring a claim.
  2. A single one-off comment cannot be sexual harassment. Wrong.
  3. A compliment cannot be sexual harassment. Wrong.
  4. A junior employee cannot sexually harass a superior. Wrong.
  5. Sexual harassment can only be committed by a man towards a woman. Wrong.
  6. The fact that you had no intention to cause offence is a defence. Wrong. Philip Green specifically said he did not intend to cause offence, but this is irrelevant in determining if sexual harassment has taken place.
  7. A comment out of work hours cannot be harassment. Wrong. Sexual harassment can be committed in any social engagements involving colleagues, whatever the day and whatever the hour. So, conduct at work social events is still judged within the standards of how you should behave in the office and alcohol consumption is no mitigation.
  8. As an employee, you cannot be personally liable or personally sued. Wrong. An employee can be personally liable and their name can be referred to in any proceedings in addition to the employer.

A clear lesson for employers (and employees)

There is a clear lesson here and one that employers would be well-advised to heed. Any comment that can make someone feel uncomfortable and can be related to their sex, (whether it is perceived as a compliment or not), exceeds the boundaries of acceptable banter and is sexual harassment. The simple answer is to think carefully before you make any comments. Even if the comment is not complained about by the colleague to whom it is directed, a colleague in earshot has the right to complain of sexual harassment. This can be a career damaging situation.

Staff at all levels need to be educated about what constitutes sexual harassment and what type of banter is acceptable. This should be an ongoing process and one that is constantly reinforced until people’s behaviour changes. I am certainly not advocating that all banter should be outlawed or that people shouldn’t enjoy themselves in the workplace – it is simply a question of knowing where the line needs to be drawn. If you are in doubt, the chances are you are or about to exceed the boundary. Always maintain professional conduct in all workplace environments and you will have nothing to worry about.

 

For more information on this subject or if you would like to discuss harassment you have suffered in the workplace in the strictest confidence, please get in touch.

DD: +44 (0) 7971 000 048

Email: thalis.vlachos@gunnercooke.com

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