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Frettens Update: Harassment claim fails where not reasonable for Claimant to take offence

  13th April 2011      
 Company News, Employment Law

1 April 2011

In Thomas Sanderson Blinds v English (No.2) the Employment Appeals Tribunal (“EAT”) upheld a Tribunal’s decision to reject a harassment claim, having taken into account evidence that the Claimant had previously engaged in similarly offensive conduct and made no complaint until he deemed one particular incident had gone too far. The Tribunal had properly considered whether it was reasonable for the Claimant to feel that the conduct complained of had an adverse effect on him and had been entitled to conclude that it was not.

In a widely publicised case the Claimant, who is heterosexual, complained of homophobic ‘banter’ and sexual innuendo by his colleagues. His claim of harassment ‘on the grounds of sexual orientation’ was allowed to proceed by the Court of Appeal, which held that someone who suffers homophobic ‘banter’ at work, even though his colleagues know him not to be gay, is nonetheless protected by law (formerly the Employment Equality (Sexual Orientation) Regulations 2003 but now the Equality Act 2010).

The Tribunal, after the case had been remitted back to it, upheld only one aspect of the harassment claim, relating to an article about the Claimant in an in-house magazine that was seen by his family and prompted him to complain. This was a ‘tipping point’, exceeding what the Claimant considered to have been the acceptable level of personal attack and insult. The Tribunal rejected all other allegations of harassment. It had regard to evidence that the Claimant had participated in banter and name-calling and had written similarly offensive articles ‘riddled with sexist and ageist innuendo’. He had made no complaint before the magazine article and, in fact, was good friends with his ‘tormentors’. Taking account of his own ‘extremely offensive behaviour’, the Tribunal concluded he could not have reasonably considered that the conduct he complained of violated his dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for him. The Tribunal went on to find that the Claimant’s claim based on the magazine incident, although harassment, was out of time and he appealed against this and the other decisions.

The EAT rejected his appeal. The Tribunal had correctly followed the approach to harassment set down in previous case law, namely that in order to bring a successful harassment claim based on the effect of allegedly offensive conduct, the victim must reasonably feel or perceive that his or her dignity to have been violated or an adverse environment to have been created. The Tribunal was therefore right to ask about the Claimant’s own perceptions and feelings in order to determine whether the effect of the unwanted conduct was to violate his dignity or create an adverse environment.

This case serves as a warning to workers and employees who wish to bring claims for harassment that, if they have themselves taken part in the ‘unwanted conduct’, such as banter, they will find it very difficult to succeed. Employers would do well to inform their staff of this when drawing up their anti-harassment policies.

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