Offensive remarks are often made by someone under the genuine belief that what they say could be construed as a joke, orbanter, and the recipient of the inflammatory language may even laugh along too. But does a sharp quip that has the whole team laughing absolve the speaker from all liability?
The recent case of Mr. R Barr v easyJetconsidered this exact question. The employee consistently made sexually inappropriate comments to staff under the guise ofbanter. Some employees accepted the comments as such and brushed them aside, others though, including members of the public on board a flight, did not.
This article looks at what happened in this case and what lessons can be gleaned from it for employers – focusing in particular on the robust disciplinary procedure with which easyJet investigated these complaints. This ensured Barrs claim of unfair dismissal was snuffed out quickly. There is a lot, employers can learn about protecting their business from how easyJet handled this situation, so lets break it down.
Inside the case: What happened between Mr Barr and easyJet
Mr Barr, a former cabin manager for easyJet, was the subject of multiple complaints from both passengers and crew members on board various flights.
One of the first complaints about Mr Barr in 2022 about his treatment of female colleagues resulted in a disciplinary hearing, which concluded that he be issued with a final written warning. Subsequent complaints resulted in easyJet providing him with the opportunity for some coaching around his behaviour.
But in 2023 further complaints emerged that Mr Barr was still making inappropriate comments to female members of the cabin crew. Some of his comments were made over the tannoy, resulting in the entire passenger cohort hearing as well.
When questioned, Mr Barr said that the comments and innuendos he made (which are deliberately omitted in this article), were purelybanter. He refuted the notion that they had any sexual nature to them.
Mr Barr was subsequently brought to another disciplinary hearing, and was dismissed for gross misconduct for behaviour that was in breach of easyJets bullying and harassment policy.
A model misconduct investigation: Why easyJet got it right
Few tasks are more challenging for an employer than handling the dreaded misconduct investigation. When one of your employees is on the receiving end of an allegation of wrongdoing, it is paramount that the investigation is dealt with impartially and with integrity, and that there is ample opportunity for the employee to respond to allegations.
Conducting an investigation in this robust way not only ensures a smooth and fair procedure, it also ensures your organisation is in a good position to defend itself against a future claim from the employee if they seek to challenge the dismissal.
In light of that, here are some of the things that easyJet did to set themselves up for success:
- easyJet had implemented mandatory training on diversity, inclusion and equality. Mr Barr had attended this training, and therefore should have been well aware that his conduct failed to uphold the values raised as part of the training. However, Barr tried to claim that the necessary training was not provided, he agreed that some training took place, but he wasnt paying attention and simply ticked the box at the end. The Tribunal reasoned he did this at his own risk. This is a clear message that if the employer provides appropriate training and keeps clear records, this will put them in a good position.
- When they became aware of the informal culture and the regular use of banter within this customer facing role, the airline acted quickly in fully investigating the allegations, reprimanding the employee as necessary.
- The airline had previously issued a final warning, demonstrating that they were willing to consider all options before dismissal. Barrs repeated behaviour meant the employer lost trust in the employee, giving them little choice but to dismiss.
- easyJet had well documented disciplinaries and investigations, allowing them to easily demonstrate all the steps they had taken to the Tribunal. A good reminder of the importance of how documenting your processes can help you resist claims.
- they allowed the employee the opportunity to participate fully in the disciplinary process and to appeal and considered it sincerely.
Following his dismissal as a result of these allegations of sexual harassment, Barr brought a claim against the airline for unfair dismissal on the grounds that he was allegedly dismissed for his sexual orientation.
However, the Employment Tribunal found that easyJet had a genuine belief in the employees misconduct being sexual harassment, based on a reasonable investigation, and therefore his dismissal was within the range of reasonable responses.
Preventing harassment: Key actions for every employer
- Even if the recipient of potentially offensive comments doesnt necessarily feel offended, these comments could still be in breach of both the law and your organisations harassment policy. Regardless of how the jokelands, you should take swift action to address potentially discriminatory or offensive language that may be construed as unacceptable.
- Your records and documents are critical in demonstrating you have followed a fair process.
- As youre likely aware, the prevention of sexual harassment is a proactive duty for every employer under the Worker Protection Act. This means that you must actively consider the likelihood of this type of harassment occurring and take steps to mitigate that risk before anything has even happened.
How our employment team can support you with harassment prevention
Misconduct investigations can be a tricky area for any employer, but here at Boyes Turner we have considerable experience in guiding our clients through this. If you have any questions or concerns about misconduct investigations, or anti-harassment policies, get in touch with our expert team today.
We also have a full and comprehensive Preventing Sexual Harassment support package for businesses which includes a bespoke risk assessment undertaken by our lawyers, engaging and interactive training for employees, managers and senior leaders and recommendations and action points to help employers discharge their duty. Get in touch with Claire Taylor-Evans, Partner for further information.
Recognised leaders in employment law
Boyes Turner has been shortlisted as finalists for Employment Law Firm of the Year at the Personnel Today Awards 2025 in recognition of the strength of our Employment teams expertise, and particularly our innovative approach to supporting clients with their obligations under the Worker Protection Act. Our Preventing sexual harassment risk assessment, training and support package for employers, is helping organisations proactively manage risk and support safer, more inclusive workplaces.
