Workplace banter – Why employers shouldn’t turn a blind eye | Employment law

Experience and case law tells us there is a fine line between harmless fun and offensive behaviour. Businesses must be mindful of the negative effect office jokes and jibes can have on their staff and how turning a blind eye could land them in an employment tribunal.

Comments that are derogatory, demeaning or unpleasant are potentially discriminatory and harassing. It is therefore critical to recognise when to step-in and when “banter” could form the basis of a legal claim.

Grievances

A toxic environment can leave people feeling alienated and whilst some will suffer in silence others will raise a formal complaint.

Failing to investigate and address a discernible complaint will leave a business exposed. This is not about paying lip-service to a process but properly analysing the context in which behaviour occurs to understand its meaning and how the business should respond.

Unhappy and disillusioned employees are less productive – affecting a business’s bottom line. A disenfranchised worker could vote with their feet; leaving the business to pick up the cost of recruiting a replacement and potentially being faced with a costly constructive unfair dismissal claim.

Discrimination

Unaddressed banter can also escalate to a tribunal complaint – typically a costly discrimination claim with compensation being uncapped.

Broadly speaking, discrimination occurs where someone is treated unfavourably because of a ‘protected characteristic’: disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation or age.

As a form of discrimination, harassment is commonly litigated by workers offended by behaviour at work. The principle standard is whether the comments made had the purpose or effect of violating dignity or creating an intimidating environment. It is easy to see how a joke to one person can offend another.

What can employers do?

For most businesses workplace banter is part of everyday life, sometimes creating a congenial place in which to work, strengthening bonds between colleagues and increasing morale. Banning banter is not the solution but striking a balance is. Businesses could:-

• Invest in staff training – understand and create awareness around developing an inclusive culture at work. Ensure policies reflect the standards of behaviour expected.
• Empower staff to raise concerns through a proper channel.
• Treat complaints seriously – be mindful that unwanted comments could have adverse consequences for the business.
• Take timely advice – something that is tempting to brush off as banter could form the basis of a legal claim.

For further advice please contact Lisa Kemp, Associate Solicitor on 01905 677047 or email lkemp@thursfields.co.uk