Participation in banter

What should you do if a gay member of staff or student participates in homophobic ‘banter’? And if they participate, do they later have legal rights to allege harassment? Does your bullying and harassment policy make clear the answer to these questions? 

In Leitch v Heart of England Properties Ltd, Leitch, a gay man who had not revealed his sexual orientation at work, alleged that he was forced to resign after being subjected to harassment related to sexual orientation, which included a colleague often calling him ‘gay boy’, openly asking him if he was gay and enquiring whether he had ever ‘been with a woman’. 

The tribunal upheld Leitch’s claim. Although Leitch had not complained initially and had participated in the ‘banter’ to some extent, he had complained to his manager towards the end of his employment and had told his colleague to stop. This supported Leitch’s claim that the behaviour was in fact unwanted and created an offensive working environment. The fact that he had not complained earlier and had participated to a certain degree did not mean that he condoned the behaviour, particularly in light of the employer’s own Bullying and Harassment at Work policy which makes the valid point that the ‘victim' may ‘side with the abuser as a way of avoiding attention'.