When does banter become harassment, and can you (as an employer) be held liable?

There has recently been a lot of press coverage of the case of Svetlana
Lokhova who was awarded £3.2m in relation to her claims for sexual
harassment and gender based discrimination during her time working for a
Russian bank.  The level of the award doesn’t particularly surprise me,
given that her annual package was in excess of £750,000 and having had a
nervous breakdown she was likely to never work in the industry again.  I am
always more surprised to read about the failure of the organisation
concerned to take the issue seriously when it is raised with them.

In this particular case the employee was driven to a nervous breakdown by
the treatment she received from her male colleagues which caused her to
resign.  The behaviour we are talking about included calling her a ‘crazy
coke head’, ‘bonkers’, saying to her that she had ‘unfortunate natural brain
chemistry’ and that she was only hired ‘because of her t**s’.  Again, it is
not the nature of comments that I find interesting – there are probably
inappropriate comments being made in lots of places which can fall under the
heading of discrimination because it is connected with a protected
characteristic, in this case, sex.

What is always more interesting for me is the failure of an organisation to
deal with perpetrators.  Most disciplinary procedures will say breach of the
diversity and equality policies or bullying and harassment amount to gross
misconduct justifying dismissal, and yet you often find organisations not
dismissing and setting an example for other employees, but seeking to
dismiss conduct as ‘office banter’ and failing to investigate complaints
thoroughly.

Whenever I do diversity training and you give people a forum in which they
can discuss what the policies actually mean, the conversation always takes
an interesting turn.  I witness delegates going on a journey from minimising
conduct as ‘banter’ and something that is witty or lighthearted, through a
discussion of the case law, to realising that such conduct is probably
actionable and could get them into trouble.  I have lost count of the number
of delegates who have told me in the wash-up at the end of the training
session that they are going to cease some behaviour, take down pictures or
documents in their working area or tackle someone else’s behaviour.  It is
only through such training that your policy (which is probably to be found
somewhere on the intranet or gathering dust on a shelf) can be brought to
life.  It is also really important, in these sessions, that senior managers
(including Board level delegates) are included.

It is important that those who have undertaken the training sign up to a
form confirming their attendance so that you have got proof later on, should
you need it, that they have taken part – remember one of your means to
defending a claim of vicarious liability for the acts of your members of
staff is to show that you have taken all reasonable steps to prevent the
acts of harassment from occurring.

Where somebody does raise a complaint it is absolutely critical that the
organisation is seen to take that complaint seriously, even if they feel
that it is being raised for spurious reasons.  This is often demonstrated to
the individual by the alleged perpetrator being suspended or other temporary
measures being put in place to ensure no further acts of discrimination can
occur.  One of the reasons why organisations that get into trouble find
themselves being heavily penalised is often that they have enabled the
harassment to continue beyond the point at which it has been first raised
with the organisation. That had certainly happened in this case.