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An offensive employee not harassed

Posted on 12th May 2011
Case law

An employee whose own behaviour was offensive was not unlawfully harassed.

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the employee's own extremely offensive behaviour led us to the view that the conduct he experienced was not harassment

Thomas Sanderson Blinds Ltd v English UKEAT/0316/10

Background

Mr English (E) alleged that he had been subjected to homophobic banter and this amounted to harassment. His employers (Thomas Sanderson Blinds Limited) argued that, as E had engaged in offensive behaviour himself, the 'banter' could not have had the effect of violating E's dignity or creating an intimidating, hostile, degrading, humiliating of offensive environment. It could not therefore have been harassment.

The decision

The EAT upheld the employment tribunal's decision that the majority of the banter was not discriminatory. In reaching its conclusion the employment tribunal considered that E remained friendly with his 'tormentors' and that he had not complained about the behaviour. It also stated that E's own 'extremely offensive behaviour ... in part led us to the view that the conduct that he experienced did not' violate his dignity or create an intimidating, hostile, degrading, humiliating of offensive environment.

Comment

This case is potentially useful for employers where a culture of banter in the workplace exists. The employment tribunal and in turn the EAT clearly felt that E's own behaviour meant that he could not realistically argue that the banter he was subjected to violated his dignity or created an intimidating, hostile, degrading, humiliating of offensive environment. His claim for harassment in relation to most of the banter therefore failed. The principal of this case will, however, not defeat all claims. The employment tribunal considered whether E's behaviour had been, in effect, to help him fit in or was retaliatory. It concluded that it wasn't.

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