Banter or sexual harassment? What lessons can employers learn from the Greg Wallace saga?

Greg Wallace's career appears to be in free-fall following allegations that he sexually harassed contestants, journalists and other women throughout his media career. 

His initial reaction didn't help. Instead of putting out a neutral statement to give him time to think about the best way to respond, he took to social media to complain that only a “handful” of the 20,000 contestants he'd come into contact with on Masterchef had raised issues and implied that they didn't count because they came from  “middle classed women of a certain age”.  

Since then other women have come forward to complain about him (and not just those pesky uptight middle aged ones). And the allegations have broadened to include inappropriate touching and exposing himself. 

Mr Wallace's alleged behaviour is being investigated, and he's been suspended from Masterchef. He denies engaging in “behaviour of a sexually harassing nature”.

The law

Under s26 of the Equality Act 2010 a person harasses another if they engage in unwanted conduct of a sexual nature, and that conduct has the purpose or effect of violating the victim's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim.

Sexual conduct obviously covers physical touching. But it also includes behaviour that is often passed off as “banter” such as making sexualised jokes, talking about sex, making gestures such as intimating putting money down a woman's cleavage and sharing “humourous” images or gifs.

In my experience, most people who are accused of sexual harassment at work don't set out to cause offence or upset anyone and are often surprised that what they have said or done has had that effect. 

It's also common for employees who are accused of sexual harassment to try and excuse their behaviour by claiming that they were joking, or that that their comments have been taken out of context, or not directed at the person who has been offended. These excuses won't cut any ice with a tribunal. Sexual harassment isn't limited to situations where the harasser set out to cause offence or upset. It's wide enough to cover the impact on the victim (although their reaction must be reasonable - more on this below).  

As an employer, you are liable for your own acts of harassment and those carried out by your staff in the course of their employment. You'll only be able to escape liability if you can show that you've taken all reasonable steps to prevent harassment or discrimination. This is a high threshold. If the employee can point to a reasonable step you could, but didn't take, you will not be able to avoid liability for the actions of your staff. You can read about a recent example where a employer failed to persuade a tribunal that it had taken all reasonable steps to prevent discrimination here.

Employers are also now under a legal duty to take proactive steps to protect their workers from being sexually harassed at work as well as deal with complaints that arise. You must undertake a risk assessment to ascertain which employees are most at risk, take reasonable steps to reduce those risks and to evaluate your progress. Training is a key part of this.

If you breach this duty you may:

• have to pay additional compensation of up to 25% to any worker who successfully brings a claim of sexual harassment against you, and 
• be investigated by the Equality and Human Rights Commission and have enforcement action taken against you.

Is the victim's own behaviour relevant?

Mr Wallace suggested that there was a lot of banter on set and that other people - including some female contestants - made sexual remarks and innuendo. 

How other people react to banter is largely irrelevant. Just because some people find a sexually suggestive joke funny, doesn't mean that it's unreasonable for another person to take a different view. Some people may appear to laugh along to avoid standing out or alienating their colleagues. Others may walk away or try and move the conversation on.

A tribunal will consider all of the circumstances including, where relevant, how the victim has behaved in the past. If they have told ribald jokes and joined in with sexual banter a tribunal may decide that their reaction to a particular comment is unreasonable. In Snowball v Garnder Merchant Ltd, the EAT held that evidence about a woman's private sexual behaviour was relevant to determine the degree of detriment and injury to her feelings caused by sexual harassment. In that case a female employee brought a claim after her manager made sexual comments and innuendo. Her employers argued that she spoke candidly about sex to her male colleagues and was comfortable with that type of banter.

That's not to say that someone who engages in a bit of banter with their colleagues won't be able to successfully claim harassment - particularly if the perpetrator is someone who is in a position of authority over them, such as a line manager. 

A tribunal may also distinguish between how an employee complaining of sexual harassment behaves at work and in their private life to assess whether the conduct was unwanted and if it violated their dignity. In Wileman v Minilec Engineering Ltd, the EAT accepted that a female employee who wore “scanty and provocative” clothes (in the context of having posed semi-nude in a newspaper) had the right to decide what she found offensive. 

What banter is acceptable?

Banter is not always negative - it can be a normal way to relieve a bit of stress and help staff bond with each other. But your staff need to know where to draw the line.

Whilst there is no prescriptive list of banter that is or isn't acceptable, in the context of sexual harassment, they need to avoid the following: 

• making sexualised comments or jokes 
• making physical gestures which infer sexual connotations
• talking about their own sex lives
• remarking on the sexual attractiveness of other people
• remarking on what other people are wearing ("that looks really sexy"/ “you look really hot in that” etc)
• asking other people about who they find attractive or about their sexual preferences or sex lives 

You should ensure that your training on avoiding sexual harassment covers banter and that your line managers recognise when a normal, light-hearted conversation oversteps the mark, have the confidence to intervene to diffuse the situation, and demonstrate good practice by how they speak and behave towards others. 

That doesn't mean that other types of banter are fair game or should be tolerated. The Equality Act protects your staff from being harassed for reasons related to a protected characteristic (such as age, race, sexual orientation, sex or disability) that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. 

You should have workplace policies which spell this out and make it clear what will happen if a member of staff harasses a colleague or someone else, they come into contact with.

How to change your culture

If banter is commonplace in your workplace it will take time to change the culture, particularly if it hasn’t been challenged before. It is never too late to draw a line in the sand and clearly set out the standards of behaviour you expect all staff to follow going forward. 

Your line managers should play a key role in challenging inappropriate behaviour by:

• setting the required standards and role modelling good behaviour
• intervening if they see or hear anything that is inappropriate even if no-one complains about it or appears to be upset or offended
• keeping a record of any conversations they have with staff about their behaviour; and
• escalating matters when appropriate, which may include commencing a disciplinary process if the behaviour is serious or repeated.

Our training

If you haven't already started training you staff on sexual harassment now is a good time to start. We have produced two modules to help your staff understand the new duty. The first is directed at all staff - both junior and senior and explains the legal definition of sexual harassment and gives practical examples to help reinforce the learning. The second module is directed at line managers and provides them with the tools they need to confidently deal with incidents and role model best practice. You can find out more about this training here.

We can also offer bespoke face to face  or remote training tailored to your organisation. Please speak to Jenny Arrowsmith or Gordon Rodham for more information.

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