Month: January 2019

‘It was just a bit of banter’ is a phrase often banded around the workplace, but when does a bit of banter become something more serious? Many people consider the term to imply that something offensive has been said or done whilst others consider it to be playful and jokey. Something said in gest by one person can be taken in an entirely different way by another, there is a fine line between the two and it can be difficult to distinguish right from wrong.

Our latest article looks into the complexity of ‘banter’ in the workplace.

Whilst it is important to have a healthy amount of workplace fun and interaction it is important that the balance is correct for a professional environment. When ‘banter’ is taken too far, there can be far reaching consequences and for employers it is important to make employees aware of these.

What does the law say about banter in the workplace?

The Equality Act 2010 states that employees can bring claims of discrimination and harassment against their employer in circumstances where they have been on the receiving end of, or even have simply overheard instances of ‘banter’ that they consider having overstepped the mark and is offensive.

If a claim is successful it can be costly for the employer both economically and reputationally.  

It is advisable therefore that employers set out guidance with regards to the way behaviour of this nature will be tolerated and if abused how it will be dealt with. Providing employees with this information from the outset means everyone is informed of the same rules and no one can claim ignorance.

A recent example demonstrating the complexity of banter in the workplace

A claim that was recently brought to the Employment Appeal Tribunal highlighted the true complexity of ‘banter’ in the workplace. It was a very interesting case because it contained a number of varying factors that affected the outcome of the case.

Unlike other claims brought to the Employment Appeal Tribunal, this incident required the wider working environment to be considered in relation to the claim rather than solely the individuals involved. Background context is key, and a culture of ‘banter’ can, in the right circumstances help to explain potentially discriminatory conduct.

In this case the claimant was a sales representative for the respondent working in an open plan office space where ‘banter’ formed part of the culture.  The claimant was a male who suffered from a number of health complaints including Type 1 Diabetes, he had links to the travelling community although only one colleague was aware of this and was a member of a sales team that collectively failed to hit target month on month.  There were a number of instances where he was name called and was involved with the name calling of others too.

He was dismissed for poor performance. Although the claimant did not have the length of service to claim for unfair dismissal, he did bring claims relating to discrimination on the basis of disability and/or race, including claims for discrimination arising from disability, direct discrimination, harassment and victimisation. These claims arose from several name-calling instances he was on the receiving of. He alleged that he was disciplined and eventually dismissed for raising such treatment as an issue. 

The tribunal dealt simply with the claims for discrimination as there was insufficient evidence to proceed with any of the other allegations. The legal guidance states that in order to succeed in such a claim, the claimant must be able to demonstrate that they have been subjected to unwanted conduct relating to a protected characteristic (such as race, gender, age, etc.), and that the unwanted conduct had the purpose or effect of violating the individual’s dignity; or creating an intimidating or hostile working environment.

In considering this test, the tribunal determined that the respondent’s office culture was one where teasing and banter was common. It was also considered relevant that the claimant only reported the name calling after the performance process had begun.  This combination of finding lead to the claimant losing his case.

What can we learn from this case?

There are several learnings to be taken from this example. Firstly, is the notion that an individual must meet the eligibility criteria set out in order to be able to make a claim. Recording and reporting instances of harassment and discrimination should be done in a timely manner after the incident has taken place, if it is historic like in this case it might not be looked on as favourably. Evidence is key. Making a claim with regards to a disability can be difficult to prove, in this case the claimant was unable to prove that his health conditions were linked to his weight gain and this meant his disability discrimination claim was dropped.  Finally there is the wider context to consider, if this culture is widely accepted in the workplace and the individual has been party to instances of ‘banter’ in the past, it is difficult to rule that the employer is wrongful because the whole team contribute to the overall culture.

Banter in the workplace from an employer’s perspective

Of course Employers should not feel that such an office culture is acceptable or that the decision in the case above gives the go ahead to offensive behaviour in the workplace. The factual background of this example, with only very tenuous potential links made to protected characteristics and clear evidence that the claimant was a willing participant in similar behaviour, will certainly not always be possible to duplicate in future cases.

It is still, by far, the safest route for employers to ensure that their workplace environment is professional, respectful and free of offensive behaviour in order to limit any such instances themselves.

Employment Law advice from Lawson West Solicitors      

Whether you are an employee or employer and have any concerns relating to any of the issues raised in this article, our employment team is more than willing to help and can allay any fears you may have in connection to this topic or anything else relating to employment law.

It is important for individuals to remember you only have three months from the date of dismissal to make a claim. Our employment team can discuss the individual circumstances surrounding your case and advise you on the best actions to take.

The team offers employment drop-in appointments throughout the week.  With offices in Market Harborough, Leicester and Wigston, you can arrange an appointment at a location to suit you. Simply call 0116 212 1000 or complete our online contact form today.

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.