The UK has a culture of ‘banter’. Teasing each other. Maybe even insulting each other. This even happens in the workplace where you might expect colleagues to show each other respect.
There are certain times when a little light banter is OK – when it’s a gentle kind of communication which can help team bonding and create that ‘in-group’ feeling. But there are other times when it’s absolutely not OK, and can even be illegal.
This article looks at some of the subtle distinctions, and builds on our recent article: Can a man bring a sex discrimination claim?
Case study
Yuanyuan Zhang relocated from China to work as a deputy design director at Greenland Investment from September 2015.
In November 2020, her male boss, Ling Luan, commented that her trousers made her look like a “frumpy grandmother/auntie” (translated into English).
She was upset and humiliated, and felt she had no option but to resign. She left the business in March 2021.
In July 2021, Ms Zhang made claims against the company for unfair dismissal, sex discrimination, sex harassment, victimisation and unlawful reduction from wages.
“Frumpy” means old-fashioned and unattractive, and is a descriptor that’s usually reserved only for women. Employment Judge Paul Singh therefore found that it was: “unwanted conduct related to sex”.
The comment violated her dignity and is inherently linked to gender, so would have been ruled as sex discrimination. However, there are strict time limits when it comes to making claims at the employment tribunal and Ms Zhang applied too late, which meant her claims were thrown out.
Sex discrimination: Yes or no?
Given these scenarios, what do you think – is it sex discrimination or not?
- A male line manager interviews a female worker for a promotion opportunity. He says she’s the favourite for the job because she’s “the best-looking candidate”.
Sex discrimination: YES or NO?Yes. Commenting on a person’s appearance is irrelevant. Even though the applicant didn’t object to the statement, a tribunal would count it as unwanted conduct.
- During a mixed-sex training session, the male trainer made a number of sexist remarks to the group as a whole. One of the female trainees found the comments offensive and humiliating to her as a woman.
Sex discrimination: YES or NO?Yes. She could make a claim for harassment related to sex, even though the remarks were not specifically directed at her.
- A waitress is sexually harassed by a male customer and complains to her manager. The manager decides to serve the customer himself. On his way out of the restaurant, the customer touches the waitress on her bum.
Sexual harassment: YES or NO?No. Because the employer would have dealt with the complaint in the same way whether the server was male or female. So, although the employer arguably didn’t take sufficient action to prevent the second act of harassment, they are unlikely to be liable.
- A female worker (who’s hetrosexual) is subjected to homophobic banter and name-calling.
Sexual orientation discrimination: YES or NO?Yes. This could amount to harassment related to sexual orientation.
- A male worker (who’s hetrosexual) was regularly called homophobic names by his colleagues. The behaviour continued for several years and he didn’t object. In fact, he made equally offensive comments back at them. There were genuine friendships between the workmates and he even went on holiday with one of them.
Sexual orientation discrimination: YES or NO?No. In the circumstances, a tribunal found that the worker’s actions don’t indicate that the conduct was unwanted.
- A worker has a son who is a trans man. His colleagues make jokes about his son’s transition.
Gender reassignment discrimination: YES or NO?Yes. The worker could make a claim for harassment related to gender reassignment.
- A Sikh man wears a turban to work. His manager doesn’t know any better, assumes he is Muslim, and subjects him to Islamophobic abuse.
Religion or belief discrimination: YES or NO?Yes. The worker could have a claim for harassment related to religion or belief because of his manager’s perception of his religion.
- A manager racially abuses a Black worker in front of a White colleague.
Race discrimination: YES or NO?Yes. The Black worker would be able to claim for harassment related to race. Also, the White colleague could bring a claim of harassment related to race if they are offended by the abuse.
- A White worker is a member of a far-right group which he says he joined because he thinks there are too many ‘coloured’ people in the UK taking jobs away from ‘indigenous’ people.
Race discrimination: YES or NO?Yes. A Black worker could claim that her colleague has made the environment intimidating for her, even though he only made the comment once.
- A worker is abused because he wears a hearing aid, and his colleagues think it’s amusing to say: “Pardon?” every time he speaks.
Disability discrimination: YES or NO?Yes. He could make a claim for harassment due to his disability.
(These examples are edited from examples given in the technical guidance PDF Sexual harassment and harassment at work by the Equality and Human Rights Commission. Please ask us if you’d like a link to the document.)
Harassment: The evidence
Sadly, as the recent #MeToo movement demonstrates, sexual harassment is still pervasive.
A 2018 survey by the Equality and Human Rights Commission found that 3/4 of respondents had experienced sexual harassment at work. Nearly all the people who had been sexually harassed were women, and nearly all the perpetrators were men – mostly, senior colleagues.
One in five mothers said they had experienced harassment or negative comments related to pregnancy or flexible working. This also counts as harassment relating to sex.
2016 research by the Trades Union Congress (TUC) found that 52% of women had experienced unwanted behaviour at work, including groping, sexual advances and inappropriate jokes, which rose to 63% for women aged 16–24.
Meanwhile, 2019 TUC research shows that 68% of lesbian, gay, bisexual and transgender (LGBT) people and ethnic minorities had been harassed at work, ranging from verbal abuse and unwanted touching right up to serious sexual assault.
In the TUC’s 2016/17 study, over 70% of Asian and Black workers reported that they had experienced racial harassment at work in the last five years.
The data goes on and on.
What this means to you
Employers are supposed to take reasonable steps to ensure their employees don’t experience harassment at work.
Unwanted conduct could include:
- spoken words
- written words
- social media posts
- imagery
- graffiti
- physical gestures
- facial expressions
- mimicry
- jokes or pranks
- aggression
- physical behaviour towards you or your property
If something offensive happens to you at work which violates your dignity, don’t just let it slide, assuming you’re being over-sensitive.
Talk to us and we’ll let you know how best to handle it.
It could be anything from making an informal complaint via your line manager or HR Department, to going through your employer’s grievance process, to making a claim at the employment tribunal and winning compensation.
We only act for employees, not employers, and are used to dealing with all types of discrimination.
Related reading
If you found this information useful, you might also like to read our related articles, which include:
- Age discrimination: I’ve been called rude names
- Your employment law guide to Christmas parties
- My colleague is racist
- What to do if you are harassed at work
- I’ve been bullied at work
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