Can an employee in the near vicinity of office banter complain that such workplace banter is creating an offensive environment, even if the employee is not a participant in, or the subject of, such banter?
The Employment Tribunal (ET) decision in the case of Mr M Davies v White Doves Garages Limited [2025](1) has given some guidance on banter issues. Mr Davies (D) was taken on as a sales executive by White Doves Garages, and over the period of his employment from 8 to 29 April, tensions between the employer and D had started from the outset. D was critical of his manager, became confrontational when challenged on matters, and would only follow internal processes if he felt they had value. Work colleagues complained that he was hard to work with, and that D was rude and condescending.
On 26 April, management met to discuss D’s behaviour and concluded he was unmanageable, that he was damaging team cohesion, and were looking at dismissal.
Despite management’s perception of D’s behaviour, D also had workplace concerns. He worked in a communal office and was regularly overhearing conversations in the background from his work colleagues which he felt were inappropriate, and the majority of these conversations had sexual/homosexual connotations.
On 28 April, colleagues discovered that D had been making covert recordings of office conversations. Staff members contacted management stating they did not want to work with him, resulting in a dismissal meeting taking place on 29 April, where D raised concerns over inappropriate banter by his work colleagues and sought to rely on the recordings.
D was dismissed for breaching trust by making the recordings, refusing to follow procedures, and contributing to a breakdown in working relationships. D brought various claims in the ET, including a claim for sexual harassment under section 26(2) of the Equality Act 2010, arguing that the conduct created an offensive and degrading working environment.
Under section 26(2) of the Equality Act 2010, sexual harassment occurs where:
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there is unwanted conduct of a sexual nature; and
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the conduct has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
D’s employer defended the matter on the grounds that D never objected to the comments, that others would not have been offended by such comments, and that the comments were not directed towards D.
The ET upheld his claims of harassment related to conduct of a sexual nature and sexual orientation. It dismissed claims of wrongful dismissal, detriment and dismissal for making protected disclosures, and victimisation.
This case highlights the importance of employers considering the impact of workplace banter on all employees who may overhear them in shared spaces, not just those directly involved, as harassment will be based on the effect on the complainant, not whether others found the comments acceptable. Silence—i.e., not objecting—will not be equivalent to consenting to the inappropriate banter, and humour intended to be harmless could still amount to harassment if it creates an offensive environment.
Although the ET decision is not binding on other ETs, the decision does provide useful understanding on how other employment tribunals may evaluate harassment claims based upon casual workplace culture and language.
The UK’s Anti-Bullying Week was from 10–14 November, and this case is a timely reminder for employers to reflect on their responsibilities to ensure a safe and respectful workplace environment and review their harassment policies and train staff accordingly.
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