When workplace banter becomes harassment: legal insights from a recent tribunal case

In the recent Employment Tribunal case of Mr. S. McGhie v RHT Scotland Ltd, the Tribunal ruled in favour of Mr. McGhie, an openly gay employee, in his claim against his employer, RHT Scotland Ltd for harassment and victimisation. As a result, the Tribunal awarded him £5,500 in compensation for injury to feelings, recognising the impact of derogatory remarks and discriminatory language directed at him by his supervisor and another colleague.

This case highlighted a culture of exclusion and inappropriate workplace “banter,” underscoring the importance of employers taking proactive measures to prevent harassment and victimisation of LGBTQ staff.

Legal context: protections under the Equality Act 2010

Under the Equality Act 2010 s.12, sexual orientation is a protected characteristic, ensuring individuals are safeguarded from discrimination, harassment, and victimisation in the workplace.

Employers may establish a defence against harassment claims if they can demonstrate that reasonable steps were taken to prevent such behaviour. However, in Mr. McGhie’s case, the Tribunal found that RHT Scotland Ltd had failed to implement adequate preventative measures, leaving the employee vulnerable to mistreatment.

Upcoming legislative changes: The Employment Rights Bill

Employers should also be mindful of forthcoming legislative changes under The Employment Rights Bill, which is set to amend existing employer responsibilities. Under the new law, employers will be required to take “all reasonable steps” rather than simply “reasonable steps” to prevent workplace harassment.

While these reforms are not expected to take effect until 2026, employers should begin preparations to ensure compliance with these strengthened legal obligations now.

Key lessons for employers

To encourage a respectful and inclusive workplace, employers must take active measures to prevent harassment and victimisation. Lessons from this case include the importance of clear policies, effective training, strong reporting mechanisms, and prompt action.

1. Establish comprehensive policies and procedures

Employers should implement comprehensive policies that clearly define harassment and victimisation, outline reporting procedures, and specify disciplinary action for any violations. Policies should be widely available, communicated with staff and consistently enforced.

2.Deliver regular and effective training

Employers should provide ongoing training to help employees recognise and respond to incidents of harassment and victimisation. Training should also address the impact of microaggressions and discriminatory language, reinforcing the importance of an inclusive workplace culture.

Additionally, managers must be given training to ensure they are able to handle complaints appropriately.

3.Strengthen reporting mechanisms

Confidential and accessible reporting mechanisms should be established, enabling employees to safely report any unwanted conduct. Having trustworthy mechanisms in place ensures incidents can be addressed swiftly and appropriately.

4.Take immediate and appropriate action

If homophobic remarks or inappropriate behaviour occur, employers must investigate grievances promptly and seriously. Failure to do so can lead to legal consequences, including Tribunal claims.

5.Provide support for affected employees

Employers should offer resources such as counselling services to employees and colleagues impacted by harassment or victimisation. Providing a safe and supportive workplace is crucial for overall employee well-being and retention.

How we can help

This case serves as a critical reminder that discriminatory language and exclusionary workplace “banter” are not only inappropriate but also unlawful. Employers must adopt a zero-tolerance approach to harassment and victimisation—not only to comply with legal obligations but to cultivate a workplace culture that is diverse and inclusive.

Our expert team can guide you in taking proactive measures today, to ensure employers can mitigate risks, protect employees, and create a more welcoming and supportive work environment for all staff.

Get in touch with a member of our team or contact Musab Hemsi at Musab.Hemsi@andersonstrathern.co.uk.