When office traditions are perceived to be harassment
In late 2019, a complaint of age-related harassment was considered by the Employment Tribunal in Munro v Sampson Coward LLP. The employer, a law firm, had a practice within the firm of marking birthdays with birthday cards from colleagues.
The birthday card, which the tribunal concluded as being ‘an act of kindness’, was received quite differently in this case. The claimant received the card and related comments from her colleagues as distressing and heinous actions. She reportedly left the office early, too upset by the events to be able to concentrate.
The claimant applied to the tribunal to refer to her age as ‘X’ so as to save her from a further violation of her dignity. The tribunal refused. The tribunal accepted that the claimant was genuinely upset by the age-related comments, but found that it was unreasonable to have known that the comments would have had that effect; an element necessary for a claim to be successful.
The legal test for harassment is as follows: ‘A person harasses another if they engage in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating the other’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person’.
The claims in this case therefore failed – but it might make us consider, what other well-meant and routine, workplace occurrences might an employer risk harassment and discrimination allegations?
Here are a few:
Nicknames-which are related to ethnicity or age
Comments– calling a young receptionist immature or childish could be perceived to be age-related harassment;
Online behaviour– messaging a colleague on social media might be perceived as sexual harassment depending on the frequency and nature of the content
Criticising someone’s spelling who suffers with dyslexiacould be disability -related discrimination
Circulating jokes-with homophobic or sexual content
The Equality and Human Rights Commission has produced guidance for employers. They state that ‘no workplace is immune to harassment, and a lack of reported cases does not mean that people have not experienced it’. Employers have a duty to take reasonable steps to prevent their workers from harassment and remember, individual workers can be personally liable for acts of harassment as well.
The message to employers though is clear; investigate and address concerns raised with sincerity and impartiality, having consideration for the context.