Partner Susan Thompson and Associate Andrew Czechowski discuss lawsuits related to ‘banter’ in the workplace and explain how employers can safeguard against these
Susan and Andrew’s article was published in People Management on 29 June 2022, and can be found here.
Banter is often considered a harmless part of the UK workplace environment. However, when it goes too far, banter amongst colleagues can result in claims of harassment and discrimination. According to a report from The Financial Times, Employment Tribunal claims related to banter in the workplace increased 44% between 2020 and 2021.
The term ‘banter’ is often used by employers to deny that things said amount to acts of bullying, discrimination and harassment. The defence being, banter is harmless, jovial, consensual and fun. However, time and again Employment Tribunals have upheld claims in favour of employees where banter oversteps the line. The difficulty for many employers is that what one employee might consider to be light-hearted fun could be interpreted by another as bullying, discrimination or harassment. This is particularly the case if the comments made relate to a protected characteristic covered by the Equality Act 2010 such as age, disability, gender reassignment, pregnancy, race, religion or belief, sex and sexual orientation.
Recent case law examples where banter was said to constitute discrimination or harassment include an individual being told he was gay because he didn’t like football, an employee’s Irish accent being ridiculed and a woman being exposed to a line manager who repeatedly referred to women as ‘birds’.
Whilst the statutory cap for ordinary unfair dismissal claims is currently £93,878 (being the maximum award an Employment Tribunal can make against an employer), claims related to harassment and discrimination are uncapped. Together with awards for injury to feelings, compensation can be significantly more than the unfair dismissal cap.
Employers need to ensure that employees are aware of the standards expected of them. It is important employers do so since employers are, in most cases, liable for claims brought by employees complaining about their colleagues’ behaviour. As such, banter and an unprofessional working environment could lead to financial liability for employers if they have not taken adequate steps to prevent the behaviour in question.
Employers need to have robust policies on equality and diversity, anti-harassment and bullying. These should be kept up to date. Once the employer has policies in place, it is essential to ensure that employees are aware of them, as well as what the ramifications are if they fall foul of them.
One way of ensuring employees are aware of the policies in place is to provide equality and diversity training. This can be done via webinars, seminars and on-site workshops. If you are a small employer, you could consider hiring third party services to provide the training such as HR consultants or employment lawyers. Larger employers may wish to use in-house resources to provide the training.
Whilst training will not completely negate the financial implications of being pursued in the Employment Tribunal by a disgruntled employee, evidence of training will mitigate issues related to vicarious liability. It will also assist with you disciplining (or even dismissing) an employee who pleads ignorance and is said to have gone too far.
Employers should also bear in mind that it is also not unusual for work colleagues to be connected on social media. Social media is often the epicentre of banter, bullying and harassment, where individuals are operating on a more personal level. It is therefore important that employers consider workplace policies on social media use. A further safeguard employers can consider is email and communication monitoring, whereby employees consent to review of their email correspondence with colleagues. Having a communications policy in place will assist when collating evidence related to a grievance or disciplinary process.
Lastly, in circumstances where internal complaints arise relating to banter, bullying, discrimination or harassment, employers should ensure that they manage these in line with their own grievance policies to ensure that they handle complaints effectively and take disciplinary action where appropriate. Consideration should be given to the ACAS Code of Conduct on handling grievances and disciplinaries, as failure to do so may lead to a further 25% increase in compensation being awarded.