When does workplace banter become unlawful harassment?
LEGALLY PROTECTS PEOPLE FROM DISCRIMINATION IN THE WORKPLACE AND IN WIDER SOCIETY.
According to new research, the number of employment tribunal claims involving the use of “banter” in the workplace rose by 44% in 2021.
What one employee says is light-hearted teasing may, in fact, amount to unlawful harassment. What does the law say in this area?
The Equality Act 2010 states that harassment is unwanted conduct related to a protected characteristic (age, race, sex, etc.) which has the purpose or effect of either violating an employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Banter can fall within this definition if it’s unwanted by the victim, regardless of whether they’ve made that position clear to the perpetrator, and it also doesn’t matter that they may have previously tolerated the banter without complaining.
If the banter has the purpose of being offensive, etc. and it’s unwanted, it will amount to harassment. However, even light-hearted banter that’s not intended to be offensive can still be harassment if that’s its effect on the victim. In this situation, an employment tribunal will consider the victim’s own perception and then go on to consider whether it’s reasonable for the perpetrator’s conduct to have had that effect. On this latter point, it means there won’t be any harassment if the offence caused was unintentional and the victim is being hypersensitive. Each case will turn on its own facts though, and tribunals will often reject attempts by employees to brush off offensive comments as normal workplace banter. For example, in one recent case, nicknaming an older employee “half-dead Dave” was held by a tribunal to constitute harassment. Conversely, in another case, calling an employee with links to the traveller community a “fat ginger pikey” wasn’t held to be harassment because the comment wasn’t intended to offend the employee, he himself was an active participant in the workplace banter culture and he wasn’t found to have been offended.
Where unlawful harassment is made out, you can be vicariously liable for your employees’ conduct where it occurred in the course of their employment, subject to the “reasonable steps” defence. So, do conduct regular staff dignity at work training so that employees understand the difference between acceptable workplace humour and potentially unlawful harassment.