Within many workplaces, people will tend to use harsh or bad language. Sometimes, it is also common for individuals within an office to use bad language towards one another. This could sometimes be seen as part of being friendly with your colleagues and is typically referred to as ‘office banter’. However, what we need to consider is, does every bad word count as sexual harassment? The answer is no.

If someone gets angry and uses bad language, this isn’t automatically considered to be a PoSH problem. Being rude or against company guidelines may have occurred but this does not deem it as being classed as sexual harassment. However, if things are being said with a sexual connotation, gender related topics, or focuses on a specific person making them feel uncomfortable, embarrassed or unsafe then this would apply.

A few examples would be that if someone is angry and says “What the hell was I doing?” this doesn’t compare to someone constantly commenting on a colleague’s body, sexuality, or personal life in a sexual way.

Context is extremely important here.

The Internal Committee need to consider what has been said, by who, to whom and if there has been repetition. They want to know what the situation was and what impact this had on the person who lodged the complaint.

Arguably, one could argue “We have all this language in our office”

This argument is not enough to completely justify the situation. Just because some members of staff feel comfortable saying bad or sexual language, doesn’t mean everyone feels this way. What they may see as a joke could someone else.

Intent vs. Impact

This section highlights a key principle in PoSH law – the impact of the statement is far more important than the intent. Defences saying they didn’t mean it or it was just a joke will have no bearing in law if the impact caused an intimidating or hostile environment.

Hostile Work Environment

Over time, many comments made during office banter can create a Hostile Work Environment. Even if there is no direct target for the offensive language, having a culture of making sexualised jokes or gender based slurs can create an intimidating workplace and therefore constitutes harassment.

Bystander Harassment

If two colleagues are using sexualised language with each other with their mutual consent but another colleague feels uncomfortable because they overhear them. This is a common grey area in compliance and is often seen as extremely useful.

Reasonable Person

How the IC looks to understand the context. They do not look at the sensitivity of the complainant but apply the Objective Standard (often referred to as the Reasonable Person/Reasonable Woman Principle). The IC will ask themselves would a reasonable person in the same situation as the complainant see this language as sexual harassment/hostile?

Also arguably, every argument or rudeness during the workplace shouldn’t automatically result into using PoSH law. The law is specifically for sexual harassment within the workplace. Whilst this may need addressing within service guidelines, a code of conduct guideline, or disciplinary process depending on what the organisation wants.

With regards to online communication, if someone sends a sexual or offensive message to someone through WhatsApp, email or any kind of communication channel. This can become a huge piece of evidence. Written communication means that it can be searched back to find out what was exactly said.

When discussing communication through digital channels (WhatsApp, Email, Facebook, etc.), you need to look wider than just the text. Today’s communication methods can be complex with their use of memes, GIFs, stickers and emojis. A sentence that could be seen as clean can cause PoSH complaints when coupled with a suggestive emoji or double meaning meme. This will then leave a permanent record for the Internal Committee (IC) to investigate.

The main message that both employers and employees should take away from this is...

Not every time can you say it was just a joke. Also, just because someone used a bad word doesn’t mean that it is automatically a PoSH situation.

Before the Internal Committee can determine whether the situation is covered under the PoSH law they will look at what was said, the context around this, intent, and most importantly what the situation was surrounding the conduct.

(Author, a Delhi-based lawyer, writes on law, justice, and constitutional issues.)