Many people say that banter in the workplace is normal and good fun, and helps people enjoy being at work - but there is a fine line between banter and harassment, which can often become blurred. As a result, office banter can create a hazardous environment for employers to manage.
The Equality Act 2010 allows employees to 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, "banter" which they consider has overstepped the mark.
The issue of overhearing banter is particularly an issue in large open workplaces, such as offices or factory floors.
If a claim is successful, it can result in a big bill for the employer, as well as reputational damage.
The crucial point for employers to be aware of is that the effect of discrimination and harassment is assessed subjectively, i.e. from the claimant's point of view. Just because one person thinks a certain remark is hilarious and clearly only intended as a joke, it doesn't mean that everyone does. Any individual who heard the remark and found it offensive might bring a claim against their employer, and in the eyes of the law it is only their view that matters.
In the case of Mrozinski v Q Medical Technologies Ltd ET Case No. 1801217/14, the claimant accused her line manager of six acts of harassment. During the case, evidence was presented to suggest that the claimant had found four of these acts humorous, so the tribunal found that these four acts did not constitute harassment. However two other acts, including a suggestion by the claimant's line manager that she should dress seductively for a client meeting in order to secure business, made the claimant uncomfortable and embarrassed, and so was found to constitute harassment. An award of £2,000 for injury to feelings was made. Employers should note that in this case, as in many others, it did not matter that the claimant had not previously taken issue with her line manager's conduct.
Employers should also be aware that, even if you can show that another individual in the same situation would have found the remarks funny rather than offensive, this will not help your case. This is shown from Keenan v Benugo Ltd ET Case No. 2203590/12 where the civil partner of a gay employee was asked whether he had come to see his "husband or wife or whatever he is". Another gay manager at the organisation gave evidence to say that he would not have found this question offensive, but this was held to be irrelevant; the remark had offended the claimant and therefore an award of £1,500 was made in the claimant's favour.
It may be thought that a certain individual is considered to have a strong character, and so can "take" banter in a way that a more vulnerable person cannot. However, this is a dangerous assumption to make. In Bahra v Chief Constable of Bedfordshire Police ET Case No: 1201460/12, a police officer endured race discrimination over an extended period of time and, due to his "strong character", had not raised complaints until much later than other less robust employees person probably would have done. The tribunal held that his strength of character would not result in lower compensation, rather it simply meant that he had endured the injury for longer. He was awarded £30,000.
Conversely, in most workplaces there may be some particularly vulnerable employees who will suffer more extreme injury as a result of banter than the average person would. If successful in their claim, the employer will nonetheless be liable for the full extent of that person's injury, no matter whether it is beyond the expected or not.
Clearly the existence of banter in the work place can be dangerous for employers. It is therefore advisable to have clear anti-harassment and equal opportunities policies in place, and to ensure that these policies are communicated clearly to employees.
Employers should train their employees about their obligations under the policies, and as part of this training should consider giving examples of banter which would be considered unacceptable.
As a final point, employers should ensure that they are extremely direct with employees about the potential consequences of engaging in banter that oversteps the mark.
This article was written by Charles Pallot and Rachel Maddocks.
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