Taking a Poke at “workplace banter”

When does "workplace banter" become harassment on the grounds of sex?

The Industrial Tribunals in Belfast recently published a reconsidered judgment on one such case originally heard in 2019.

Background

In 2015, the claimant was employed by the first respondent, a family-run business, as an administrative assistant. She was 24 years old.

At a performance review in September 2016, the claimant complained of sexual harassment by the second respondent, including referring to her, to her face and in his telephone contacts, as “Big Tits”.

The first respondent “…conducted no actual investigation in to that complaint, other than to issue the second respondent with a verbal warning.” The second respondent is a member of the extended Morelli family in his mid-forties. He received that verbal warning from the managing director, his second cousin. No further action was taken. There was no apology to the claimant.

The verbal sexual harassment of the claimant recommenced within a matter of weeks. It was apparent that her objections to such “workplace banter” were not taken seriously.

There was a further performance review in February 2017, at which the claimant’s concerns were not minuted. The “workplace banter” continued. In January 2018, the claimant made a written complaint which referenced her previous complaints regarding the second respondent’s conduct towards her. She then left work “on a combination of sick leave and maternity leave”.

An internal investigation concluded that “…the claimant had exaggerated and had been untruthful in her allegations” other than as admitted by the second respondent. To this extent, the claimant’s grievance was upheld. Based on his admissions, the second respondent received a final written warning.

The claimant was supported by the Equality Commission.

Judgment

Contrary to the evidence of the second respondent, there was no independent evidence to support his assertion that the claimant had been a willing participant in such conversations.

…the extreme leniency of the penalty imposed appeared to be symptomatic of grudging minimal compliance with the requirement to address it. This was in the view of the tribunal confirmation of the accuracy of the claimant’s perception of the first respondent’s lack of belief of her story.

There was no investigation and no follow-up with the claimant.

The tribunal unanimously concluded that the second respondent’s verbal conduct fell within the statutory definition of harassment on the grounds of her sex. It was, and from the time of her first complaint, was demonstrably unwanted, and further it fulfilled the remaining criteria flowing from such unwanted conduct.

It was concluded that “…such verbal conduct was probably and predictably facilitated by the first respondent.”

Conclusion

The first respondent was ordered to pay the applicant £20,000.

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