National Tell a Joke Day: What if it’s not “just banter”?
Workplace banter is often seen as harmless, lighthearted fun which contributes to a positive working environment. However, when it crosses the line into offensive territory, it can create a minefield of legal challenges for employers, with employment tribunal claims referring to “banter” becoming ever more frequent.
With national “tell a joke day” falling on the 16 August, we look at the legal implications of workplace banter and jokes and explore what steps employers should take to protect themselves against potential claims.
The Legal Position
Under the Equality Act 2010, employees are protected from harassment and discrimination based on several protected characteristics, including age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation. Banter is viewed as lighthearted fun, whereas harassment is defined as “unwanted conduct related to a relevant protected characteristic that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment”.
While no-one wants to ban good-spirited joking in the workplace, banter can quickly escalate to when joking goes too far and amounts to bullying, the consequences could include claims for constructive dismissal. It is important for employers to know that they are held liable for discriminatory acts committed by their employees during the course of employment, even if such acts occur without their knowledge or approval. This liability places a significant responsibility on employers to ensure that workplace banter does not cross the line into harassment or discrimination.
When does “banter” become harassment?
“Workplace banter” and joking can prove problematic because it can result in harassment due to age, gender, sexual identity, race and nationality. We take a look at some recent examples from case law below:
- Ms Frances Fricker vs Gartner UK Ltd, a female employee in her 30s, won her claim of sexual harassment after her boss referred to her as ‘good girl’, even after she objected, and harassed her to change her profile images on social media, saying she looked fat. As the tribunal judge said: “Referring to a woman in her late-30s with a school-age child as a girl is demeaning.”
The judge providing some further caution to employers, saying “Language evolves over time. Words and phrases that might once have seemed harmless are now regarded as racial, homophobic and sexist slurs.”
- However, cases are fact-sensitive, as in the Employment Appeal Tribunal (EAT) case of Evans v Xactly Corporation Ltd. Here, there was an office culture of banter that included jibing and teasing where no one was seeking to offend and no one was found to be offended. The EAT held that a tribunal was entitled to find that calling a claimant a “fat ginger pikey” was not race or disability harassment in the particular circumstances of the case, despite his associations with the travelling community and his Type 1 diabetes. The tribunal has been entitled to find that the comments were not unwanted as the claimant was an active participant in the jokey banter culture, and it did not have the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
The cases above outline just how difficult it can prove to be for employers to effectively “police” behaviour in the workplace, particularly when comments so often rely on context. Social media and “group chats” bring an added layer of complexity for the employer and may make it harder to know or see first-hand what is being said amongst employees. But an employer will be equally liable for harassment in a WhatsApp group chat, if it is in the course of employment.
Employer Responsibilities and Best Practices
To mitigate risks and protect both employees and the organisation, employers should put in place a range of strategies:
- Develop a Clear Anti-Harassment Policy: A comprehensive anti-harassment policy should outline what constitutes unacceptable behaviour, including specific examples of discriminatory “banter”. It should clearly state the consequences of engaging in such conduct.
- Provide Regular Training: Conduct training sessions for all employees, including management, to raise awareness about the impact of workplace banter and the importance of maintaining a respectful environment. Training should cover the legal definitions of harassment and discrimination and provide practical guidance on appropriate workplace behaviour.
- Promote a Positive Workplace Culture: Support a culture of respect and inclusion where employees feel comfortable reporting concerns. Encourage open dialogue about diversity and the negative impacts of discriminatory banter. Senior management will play a crucial role in setting the tone for the workplace culture and senior staff should demonstrate respectful behaviour and actively discourage any form of harassment.
- Implement Effective Reporting Mechanisms: Establish clear procedures for reporting incidents of harassment or discrimination. Ensure that employees know how to raise concerns confidentially and without fear of retaliation.
- Take Immediate and Appropriate Action: Investigate complaints promptly and thoroughly. Apply consistent disciplinary measures for breaches of policy, regardless of the perpetrator’s position within the company.
Conclusion
Workplace jokes and banter, while often intended to be light-hearted, can have serious legal ramifications if they cross the line into discrimination or harassment. UK employers must proactively manage workplace interactions to ensure compliance with the law. By developing clear policies, providing ongoing training, and promoting a respectful culture, employers can protect their employees and their organisation from the risks associated with inappropriate workplace banter.
If you would like further information on this topic, please do not hesitate to contact a member of BTO’s Employment Law Team.
This update contains general information only and does not constitute legal or other professional advice.
Natasha Wyllie, Senior Solicitor: nwy@bto.co.uk / 0141 221 8012 / Connect with Natasha on LinkedIn
