Dirty jokes in the workplace

It has recently been reported that 16% of women in the UK think it is okay to tell a dirty joke at work, while 28% of men consider it to be acceptable. Aside from reasons for the differing perceptions of the genders which requires a more wide-ranging study than we have time for here, it is worth explaining the law on “harassment” as it relates to such conduct. This is the claim that would be made by an employee who complains about it.

The definition of “harassment” has two limbs. The first is that the conduct is “unwanted behaviour which an employee finds offensive or which makes an employee feel intimidated or humiliated”. The second limb is that the complainant’s perception of the conduct must be considered, and whether it was reasonable for the conduct to have had that effect.

The practical effect of the second limb is that a complainant, for instance, who indulges in the same kind of conduct of which they complain, will be unlikely to persuade an Employment Tribunal (“ET”) that conduct which could subjectively be deemed to be offensive, did indeed have that effect on them. The ET is required to consider whether, if a complainant has experienced the feelings or perceptions of being intimidated or humiliated, it was reasonable for them to do so.

Applying this to the issue of “dirty jokes in the workplace”, it is clear than that the majority of both men and women consider the practice to be unacceptable, and it can be inferred that for some, it would indeed create a hostile or intimidating environment. They would be in a good position to make a claim for harassment. In contrast, those who either told such jokes or actively encouraged the telling of those, would have difficulty overcoming the second limb. They would be likely to fail if they opportunistically attempted to claim that they had been offended as a result of hearing jokes of a similar nature to which they told or encouraged.

Meaby & Co are lawyers experienced in all aspects of employment issues. Should you require advice on any aspect of employment law, including the above, please contact Chris Marshall on 0207 703 5034.