Employment lawyers and HR advisors are often accused of being killjoys.
Every year we give the same advice about how your Christmas parties can give rise to claims and of course we’re forever warning about the risks of comments or jokes being taken out of context and turned into costly discrimination claims.
Sadly, we make these warnings for good reason. Tribunal cases that reference ‘workplace banter’ are at a new high, rising 44% in the last year.
That’s according to research from Employment Law Firm GQ Littler.
What is considered banter in the workplace?
For most of us, workplace banter is a fact of life and forms part of our daily interaction with co-workers.
A dictionary will tell you that it is the good-natured exchange of teasing remarks or comments; and therein lies the problem.
What is acceptable office banter?
There is an argument to say that no office banter is acceptable banter but that is clearly unworkable. The risk for employers is that the law allows even non-participants in the exchange to potentially bring discrimination claims.
We all know that there are things we consider it acceptable for our friends to say to us (maybe a joke about our age in a birthday card) but which we would consider to be crossing the line from someone else.
Disputes become more likely when the content of the banter touches on a protected characteristic.
Of course, it is often the case that friends and co-workers make jokes at the expense of each other’s age, sex or even medical conditions, especially where the individual makes those jokes themselves.
When does workplace banter become bullying?
Bullying is not a term with a legal definition and so the point at which banter becomes bullying is often down to the definition in each workplace’s policy or code of conduct.
Legally bulling is most likely to give rise to claims for harassment (Section 26 of the Equality Act 2010) or, potentially, constructive unfair dismissal.
In the case of harassment, a claim exists where there is unwanted conduct, connected to a protected characteristic, which either violates the individual’s dignity or creates an intimidating, hostile or offensive environment for them.
As indicated above, this doesn’t have to be the person who is the target of the banter and they don’t even have to have the protected characteristic to bring the claim.
A man can be harassed, in law, by jokes made to or about women.
The impact of bullying behaviour
Bullying behaviour may also create a situation where an employee no longer feels safe in the workplace, and if that is not addressed effectively by the employer, the employee may feel they have no choice to resign.
In this situation, the employee may claim they were constructively dismissed.
Is banter an accepted justification for alleged bullying, discrimination or harassment?
‘Banter’ is not a popular word in the Employment Tribunal and an employer seeking to rely on it will need to be very careful about using it to try and defend a claim.
Firstly, there is a practical reason for this. An employer relying on workplace banter to defend a claim is as good as arguing that they have a workplace culture which encourages the kind of comments alleged and in some cases that these take place with impunity.
Where the ‘banter’ defence fails
Secondly, there are the legal arguments. Precedent tells us that more often than not the ‘banter’ defence fails.
This is because the legal test for harassment is ultimately whether the Claimant did, and a reasonable person might, in the circumstances, feel harassed by the conduct.
It is very difficult for an employer to argue that a Claimant’s response to the conduct or language was completely unreasonable and unrealistic where it appears discriminatory on its face.
Has ‘banter’ been successfully argued?
‘Banter’ was successfully argued in Evans v Xactly Corporation Limited, where the EAT upheld this precise argument largely because the Claimant had been involved in an ‘office culture of jibing and teasing’.
The Claimant had engaged in equally offensive banter about colleagues and concluded that having been involved in this way, it was unreasonable for him to be offended about comparable comments directed at him.
Some other example cases
The Evans case is very much the exception to the rule, however, and it is by no means the case that every situation of workplace harassment will be written off as banter:
- In 2017, Lisa Vickers successfully sued Hill Biscuits Ltd for harassment after (among several other examples) a suggestive comment was written in a birthday card. She was awarded £10,000.
- In 2012, a straight Claimant who was repeatedly called “gay” and “homosexual” among other specific slurs for not liking football successfully claimed harassment on the basis of sexual orientation and was awarded over £40,000
When does the ‘banter’ excuse work?
The ‘banter’ defence is only going to work if it helps show that the conduct was not unwanted, that it was not connected to a protected characteristic, or that it did not create the necessary effect on the Claimant for harassment.
A specialist Employment Solicitor’s advice for employers
No employer wants to restrict their employees’ ability to have normal social interaction but at the same time employers must be wary of the possible risks.”
Chris continues: “Everyone should be mindful of the way a joke sounds, especially if it were taken out of context.
If they would feel uncomfortable about it being said to them, or if they overheard it being said without understanding the intent, it may be safest not to say it.
As always, this goes to training and workplace culture. The more comfortable staff are both challenging and being challenged on things which go too far without the matter escalating, the less likely these situations are to blow out of proportion.”
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