Much can be gained in having a relaxed work place environment where employees can talk and express opinions freely to each other however with workplace banter there is a very fine line which can easily be crossed and turn banter into unlawful bullying and harassment even if the purpose was not to cause offence, “It was just a joke” will not be a defence.
Workplace banter examples
There have been a couple of recent cases which both started off as simple banter and humour at work, but both Claimants won their cases at an employment tribunal.
In the case of Ms J Prewett v Green King Services Ltd 2019, a pub manager was being subjected to jokes with sexual innuendos. This was deemed offensive even though the intention was a joke, the judge stated, “this was not ok”. Mrs Prewett won at employment tribunal and was given an award of £5000.
A second case of Mr A Leader Vs Leeds City Council 2019, the employee described himself as Afro – Caribbean, was subject to racist comments by another employee. The Employment Tribunal (ET) on the facts found that Leeds Council (the employer) did everything they could to inhibit any racist behaviour within the workplace and thus were not to blame pursuant to the statutory defence under section 109(4) of the Equality Act 2010, however ET found the employee who had made the remarks, personally liable and ordered him to pay £2769.00 plus interest as an injury to feeling award to the Claimant.
In both of above cases, the comments made may not necessarily have been intended to be discriminatory, however workplace banter and fun conversation may in reality amount to unlawful workplace harassment where not only the employee who carried out the banter is liable to the victim but also more importantly the employer for the actions of their employee under vicariously liability i.e anything done by the employee in the course of their employment (making offensive comments) can be treated as having also been done by the employer.
Dos and don’ts guide for handling banter
Getting the banter balance right is tough and it’s important that employers recognise the serious impact it can have and put robust measures in place to make sure that any banter is kept within appropriate boundaries ensuring that it does not give rise to any discrimination claims falling within age, disability, gender, race, religion, sex orientation, pregnancy etc for which majority of the compensation claims can be uncapped, therefore steps to be taken :
- Look at your current policies – be proactive, don’t wait before you have an employment tribunal before you act upon your HR processes. Appreciate that any negative banter that leads to a loss of confidence and resignations has a real impact on the bottom line. Even if it does not go to employment tribunal, but it can affect morale within the workplace, as well as productivity, and if the employee leaves, then as an employer you are left with costs of recruitment and training.
- Have clear policies on bullying, harassment, equality, diversity and inclusion. This is critical, so employees are accountable for their actions.
- As well as having clear, transparent policies, there should be a mechanism to report such behaviour, employees should clearly know what to do if such scenarios happen. A good example can be having a nominated welfare officer who would be the point of contact for any situations that could be deemed offensive.
- Be mindful that any unwelcome comments at work aren’t ‘just a bit of banter’ – they can sometimes form the basis of a legal claim. If an employee has not experienced something as a joke, then the environment can soon feel hostile for that person.
- Consider having equality and diversity training as part of your training package and training carried out on regular basis
- Publicise your policies and training. Almost three-quarters of people said their organisation did not have a policy on banter or didn’t know if one existed.
Hopefully by following the above guidelines, the employer could then be able to demonstrate that they had all the right policies and procedures in place to prevent such incidents from happening and thus not liable for the conduct of their employees as in Mr A Leader Vs Leeds City Council case.
If you would like your policies and processes reviewed or would like to create a specific policy around workplace banter, please contact us today by calling us on 0333 240 7208.
