Context is everything when it comes to determining whether or not an employee has been harassed at work. To amount to harassment, conduct must be on the grounds of a person’s protected characteristic, be unwanted and create a hostile environment.
In certain circumstances, relatively mild behaviour can be found to amount to harassment if it offends a co-worker. In other cases, what might appear at first instance to be obvious discriminatory behaviour is found on the facts not to amount to such.
What offends one employee might not have offended another but will still amount to harassment, albeit there is an objective element to the test in that the behaviour in question must be capable of offending a reasonable (even if sensitive) person.
The recent case of Heafield v Times Newspaper Ltd is a good example of the difficulty in sometimes drawing the line between what does and does not constitute harassment. In this case, the EAT found that the comment ”what’s happened to the f**king Pope?” did not amount to harassment on the grounds of religion, when uttered in the presence of a Catholic sub-editor. In reaching this conclusion, the EAT took into account the fact that the comment had not been directed towards Mr Heafield, and had been shouted in a pressured newsroom. While the comment was certainly not wanted, it did not create an adverse environment and it was unreasonable of Mr Heafield to treat it as such.