Mr Wallace faced intense criticism for appearing to dismiss his behaviour as ‘just banter’, stating in a video posted on social media platform, Instagram, that his accusers were all “middle-class women of a certain age” – the implication being, they just hadn’t understood the joke.
‘Banter’ is not a defence. Employees accused of sexual harassment may seek to excuse their behaviour by claiming that they were joking; that that their comments have been taken out of context; or that the comments were not directed at the person who has been offended. It is immaterial whether the conduct is acceptable to others or is indeed common in the workplace and labelling conduct as ‘banter’ does not make it nonetheless unwanted conduct of a sexual nature.
The legal position on banter
Sexual harassment is defined under s26 of the Equality Act 2010: A harasses another (B) if they engage in unwanted conduct of a sexual nature, and that conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Examples include inappropriate jokes or gestures, unwanted physical contact or sharing explicit images.
Mr Wallace defended himself by suggesting that banter was common on the MasterChef set and that other people, including female contestants, made sexual remarks and innuendos. However, the difficulty with ‘banter’ is that just because some people may find sexually suggestive jokes amusing doesn’t make it unreasonable for others to take a different view. What matters under the law is the effect of the conduct upon the individual. Offended colleagues may sometimes pretend to laugh along to avoid standing out, especially if the harassment comes from an individual in a position of seniority.
What’s more, sexual harassment may impact others in addition to the intended individual. For example, overhearing inappropriate remarks or having sight of offensive images which are directed at someone else may have the effect of harassing a third party onlooker.
The duty to prevent sexual harassment
Since October 2024, employers have been under a legal duty to take proactive steps to protect their workers from being sexually harassed at work, including by third parties.
Employers are liable for their own acts of harassment and those carried out by their staff in the course of their employment. Employers will now need to show that they have taken all reasonable steps to prevent harassment: this is a high threshold.
Steps that an employer can take to discharge this duty may include:
- Undertaking risk assessments to determine which employees are most at risk;
- Implementing regular training sessions on what constitutes harassment and how to support colleagues;
- Implementing a policy on sexual harassment and ensuring effective complaints handling;
- Fostering employee inclusion networks; and
- Monitoring and evaluating the effectiveness of the above steps.
Employers should be proactive in evaluating the measures currently in place to protect staff, and in considering what further steps could be taken. Employers who fail to comply with this duty may be liable for additional compensation of up to 25%, and may face investigation and enforcement action from the Equality and Human Rights Commission.
Reasonable steps to prevent sexual harassment
Banter is not always a negative. Joking with one’s colleagues can help build a sense of collegiality and relieve stress in the workplace. However, employers should be aware of the limits of acceptability and should proactively take steps to foster a respectful and inclusive environment. It is also worth noting that it is not uncommon for long-standing employees to say they joined in with banter because they felt they had to – but this position can change and an employee can make a complaint that the conduct was unwanted.
The EHRC has also published an “Employer 8-step guide: Preventing sexual harassment at work“, to help employers understand and meet their legal obligations.
