"It's just a bit of banter, mate - calm down!"
There’s no doubt that humour can be greatly beneficial to a workplace environment, helping to improve staff morale and cohesion, and to carry people through situations which might be challenging, busy or stressful.
It’s likely, however, that many of us will have been in workplace situations where things have gone a bit too far, whether intentionally or otherwise, and this can be where ‘humour’ that crosses the line can cause real problems for employers.
The number of Employment Tribunal cases citing “workplace banter” has reached a record high, with a reported 45% increase in references last year compared to the year before. A swift perusal of your social media feeds should easily reveal jokes or comments that go too far, could be interpreted in the wrong way or are simply rude, offensive and unpleasant.
But in a workplace situation, this can lead to difficult and time-consuming staff grievances, or even Employment Tribunal claims that can cost employers significant amounts of time, money and resources to address. Recent case law has made clear that, where workplace ‘banter’ oversteps the mark, it can amount to unlawful discrimination. This is typically defined as harassment in cases where comments refer to the ‘protected characteristics’ under the Equality Act 2010, which are race/ethic origin, sex, sexual orientation, age, religion/belief, pregnancy, gender re-assignment, disability and marriage/civil partnership.
Determining what actually is reasonable or appropriate behaviour is something of a ‘grey area’. A complainant’s reaction to what is termed ‘unwanted conduct’ (such as ‘banter’) has to be reasonable and context is therefore very important.
For example, a widely reported discrimination claim failed despite the fact the claimant had been called a “fat, ginger pikey” because it was found that the office culture normalised banter and the claimant himself had been involved in similar behaviour, so couldn’t establish that it was unwanted. It is, however, possible for an individual who is not the intended recipient of a comment or joke to be offended by it – and if that response is objectively reasonable, they too could pursue a claim. In the scenario above, this might be someone who had overheard the comment, but hadn’t themselves been involved in similar conduct.
It shouldn’t be assumed that all employees are okay with such banter and there is no requirement for employees to have explicitly asked for the conduct to stop. The significant increase in home working can also be problematic in this respect.
With many colleagues now communicating through direct messaging platforms or ‘slack’ channels, tone and delivery can sometimes be misinterpreted. In some cases, individuals can feel more confident than they would in person and the written evidence of what they said is of course there for all to see. So what can employers do? Every employer has a duty of care to safeguard staff welfare and ensure the working environment doesn’t become toxic because of a misunderstanding of the line between ‘banter’ and harassment.
This is important not only in avoiding grievances and tribunal claims, but also to fostering a positive and diverse environment that allows businesses to flourish and be productive. In many cases, this starts with training. We often work with clients on delivering equal opportunities training which raises awareness around specific issues and ensures that everyone understands what is and isn’t acceptable at work.
Alongside this, robust policies and procedures can, in certain circumstances, also help protect employers if there is a Tribunal claim. Employers must also ensure that any complaints are dealt with appropriately and that managers are trained to know when to intervene by proactively preventing issues arising and effectively dealing with them if they do.
Hay & Kilner’s specialist employment law team is hosting a free seminar on equality and diversity in the workplace on Wednesday 28 September at The Catalyst in Newcastle which will examine how equality and diversity issues may arise in the workplace and look at ways employers can support employees and minimise the risk of discrimination claims.