Can a ‘joke’ constitute harassment?
A hospital in Shropshire has reportedly turned down a donation from a group of men who raised money by dressing up as female nurses. The men raised £2,500 at an event in Ludlow, Shropshire. However, the Trust refused the money stating that the ‘presentation of men dressed as female nurses in a highly sexualised and demeaning way is wrong, very outdated and insulting to the profession.’ The men have vowed to repeat the nurse uniform fundraiser next year despite the criticism, stating they were ‘just having a bit of fun.’
It is unknown whether the men are in fact employees of the Trust. However, the allegations of ‘insulting’ behaviour raises an important question: could female nurses working for the Trust claim they have been harassed by this group of men?
The legal bit
A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating B’s dignity or creating and intimidating, hostile, degrading, humiliating or offensive environment for B. The unwanted conduct must relate to B’s age, disability, gender, race, gender assignment, religion or belief, sex, or sexual orientation.
A one-off incident can amount to harassment and B need not have made A aware that the conduct was unwanted. Furthermore, although most employment-related harassment claims concern unwanted treatment of employees towards their colleagues, employers may also be liable for harassment by third parties towards their employees. Therefore, even if the men were not employees of the Trust, the Trust may be vicariously liable for any harassment if the Trust failed to take reasonably practicable steps to prevent the harassment and knew that the employees had been harassed in the course of their employment on at least two previous occasions by a third party, whether or not the third party was the same person on each occasion.
Interestingly, although the men claim that the act of dressing up to raise funds was in good spirits and they did not intend to create a hostile or offensive environment, the fact that an employee has put up with the conduct for years, or joined in with ‘banter’ does not necessarily mean that the conduct is not unwanted.
When an employee brings a claim of harassment, the Employment Tribunal has to assess whether it was reasonable for the conduct to have the effect violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. In this instance, it would be a high hurdle to cross for any employee to prove that the alleged effect was reasonable. Furthermore, employees will have to bring a claim within three months from the act complained of.
Advice for employers
This incident is a useful reminder to employers that a one-off incident can amount to harassment, even if an employee has put up with conduct for years or joined in on the ‘joke’. A tribunal may find that the conduct is unwanted and a form of harassment. Any decision will be made in light of the specific circumstances of the particular case, and all relevant factors will be taken into consideration.
Employers have implied duties under employment contracts to provide a safe and suitable working environment, not to destroy mutual trust and confidence, and to provide redress of grievances. A breach of any of these implied duties can give rise to a claim for breach of contract.
Although the law does not require an employer to have a separate policy on bullying and harassment, as this can be dealt with under the grievance procedure, many employers have a separate policy in recognition of the sensitivity and seriousness of such complaints. Case law suggests that an anti-bullying and harassment policy may help establish a reasonable steps defence to a claim under discrimination legislation.
Guidance published by the Equality and the Human Rights Commission suggests that employers should have a written policy of harassment, either on its own or as part of a wider equality or dignity at work policy.
It is also important that employers provide training to staff on equal opportunities.
If you would like any assistance with drafting a policy or providing training please do not hesitate to contact us:
Partner and Head of Employment
T. 020 7227 7410
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.