When does workplace banter cross the line into harassment? Key lessons for employers

Blog

18.09.2025

Last month, the Employment Tribunal handed down its decision in Matthew Davies v White Doves Garage, a case that serves as a stark reminder to employers about the risks of workplace 'banter' and the scope of harassment protections under the Equality Act 2010.

What was the case about?

Matthew Davies was employed as a sales executive by White Doves Garage (the Employer). During his employment, Mr Davies reported that his colleagues frequently made offensive jokes about women, homosexuality, and sex in communal areas of the workplace.

Mr Davies brought 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 – even though the comments were not directed at him and he was not part of the conversations.

The legal framework

There are three different types of harassment under section 26 of the Equality Act 2010:

harassment related to a protected characteristic;
sexual harassment; and
less favourable treatment as a result of harassment.

Under section 26(2) of the Equality Act 2010, sexual harassment occurs where:

there is unwanted conduct of a sexual nature; and
the conduct has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

This second element is common to all three forms of harassment, and is determined by reference to (a) the perception of the person being subjected to the unwanted conduct and (b) whether it is reasonable for the conduct to have such an effect on that person.

The Employer defended the claim on several grounds, including:

Mr Davies had not objected to the comments and was a confident individual who was unlikely to be offended;
the comments were made among a close-knit team and were intended as harmless banter; and
the jokes were not directed at Mr Davies.

Tribunal findings

Employment Judge Harfield found in favour of Mr Davies, concluding that he had been subjected to sexual harassment under section 26 of the Equality Act. Some key findings included:

Mr Davies was exposed to unwanted conduct of a sexual nature, even though the comments were framed as jokes.
The conduct had the effect of violating Mr Davies' dignity and creating an offensive environment – he was entitled not to be exposed to such language in the workplace.
The fact that Mr Davies was within earshot of the conversations was sufficient; he did not need to be directly addressed or involved.
Mr Davies had raised concerns with both his employer and colleagues, undermining the argument that he was not offended.
The Employment Tribunal rejected the notion that 'banter' among colleagues could excuse the conduct, especially when it created a hostile environment for others.

Practical takeaways for employers

This case offers important lessons for employers about the scope of harassment protections and the limits of workplace humour:

Harassment can occur even if the conduct is not directed at the employee. Being within earshot of offensive jokes may be enough to establish a claim.
'Banter' is not a defence. The Tribunal made clear that humour intended to be harmless can still amount to harassment if it creates an offensive environment.
Intent is irrelevant. The fact that Mr Davies' colleagues did not intend to offend Mr Davies or anyone else did not prevent the claim from succeeding.
Silence does not equal consent. Employers cannot rely on an employee’s failure to object as evidence that they were not offended.
Training is essential. Employers should provide regular training on acceptable workplace conduct and the boundaries of humour.
Review communal spaces. Employers should be mindful of conversations taking place in shared areas and ensure that all staff understand the importance of maintaining a professional environment.

Looking ahead

This decision reinforces the importance of proactive steps to prevent harassment in the workplace. Employers should consider how this ruling interacts with their duty to prevent sexual harassment, particularly in light of recent legislative developments and guidance (see our earlier articles on this topic: A new law on preventing sexual harassment in the workplace and The duty to prevent sexual harassment: six months on).

In light of Davies v White Doves Garage, employers may wish to: