Equality Act arrived with a fanfare last month and was broadly welcomed for clarifying existing discrepancies within employment laws. But some employers are concerned that the new Act could make it easier for disgruntled members of staff who are offended by office jokes to take their employer to an employment tribunal. So does this spell the end of office jokes?
There are several key concepts in the new Act. Firstly, “associative discrimination”. This means that an employee does not have to be, for example, gay or of an ethnic minority to be protected. For instance, an employee who has a disabled child and is subjected to degrading or humiliating comments about disabled people is protected. Here the employee concerned has been discriminated against because of the disability of a person they associate with. Also, an employee also does not need to be the subject of the joke to be protected. So a female employee who shares an office with male colleagues who are verbally abusing another female colleague on the grounds of her gender is protected if this creates a working environment that is intimidating or humiliating for her.
Then there is the idea of third party harassment, which protects employees who are continually harassed by a third party, for example a customer. Such an employee can now complain to a tribunal if the employer is aware of this and takes no steps do deal with it.
So where does this leave office jokes? Employers need to be aware of the effect that banter has on their staff and ensure that they take the relevant action if they deem actions or statements to be creating an intimidating, hostile or humiliating environment for employees. The fact is that much of the Act simply repeats existing law – it remains unlawful for an employer to discriminate or harass an employee in respect of a protected characteristic and an employer is still liable for the acts of its employees while at work.
There is still a gap between banter or joking and discrimination or harassment. Banning office jokes – if it were possible – would not be a proportionate response to the Act.
Ben Stepney is a solicitor in the Employment Team at Thomson Snell & Passmore