A fine line between banter and workplace discrimination

Most of us at some point in our career have experienced workplace banter between colleagues. Perhaps it was a joke over something someone was wearing or possibly an event that occurred at the weekend. Either way, there is a fine line between banter and workplace discrimination which is causing a legal hazard for many businesses. 

Some cases are clearer cut than others. To gives examples, an employee who was called “menopausal” and a “dinosaur” due to her age and sex, or an employee teased for being gay as he didn’t like football, demonstrate where organisations have unsuccessfully tried to plead that bullying or harassment was merely “workplace banter”. 

Then there’s the cases that fall into the greyer area between banter or discrimination, perhaps where employees have engaged in similar behaviour themselves as in a case of a sales rep who was taunted due to his weight and Traveller background.  His claim partly failed after the Tribunal ruled that the office culture normalised banter with the claimant partaking too.  

Banter versus Discrimination  

However, many cases of harassment based on banter in the office are successful. In fact, figures uncovered by London employment law firm GQ Littler, show that the number of banter-based employment tribunal claims are up 45% from 67 in 2020 to 97 in 2021.  

Employers can’t claim that the employee is sensitive as a defence. Discrimination and harassment are assessed subjectively, from the point of view of the employee.  

When banter is linked to one of the protected characteristics (such as sex, race or sexual orientation) then an employee could bring a claim against their employee under the Equality Act 2010 when so-called banter has been aimed at them frequently, or even simply overheard.  

However, an unkind or rude word doesn’t have to be linked to a protective characteristic for a claim to be made. Protection against bullying and harassment is a day one right, so employees can make a claim irrespective of length of service.  

Preventing Discrimination and Harassment in the Workplace  

While there are wider cultural considerations to be made, which ensure that the right behaviours are embedded at the core of your organisation, there are key practical steps that must be taken too: 

• Have robust policies on equality and diversity, anti-harassment and bullying as well as email, internet and social media; 
• Keep policies up to date and review them regularly; 
• Make all employees aware of policies and the potential consequences of breaching them; 
• Manage grievances in line with policies, handle complaints effectively and take disciplinary action where appropriate; and 
• Provide equality and diversity training for the workforce, and specific training for managers and supervisors in equal opportunities and harassment issues (including examples of what might amount to harassment or discrimination). 

Having fun at work is important however we must recognise that crossing the line between banter and workplace discrimination can be easy to do, especially without proper business lead initiatives in place underpinned by training and awareness on what constitutes acceptable and non-acceptable behaviour. Find out more by speaking to our expert HR team >>