Beware of workplace banter

Banter claims in the employment tribunal

Banter is subjective. A harmless comment to one employee can be seen as degrading and intimidating to another. Where such comments are found to be on the wrong side of the line, employers can be held liable for the actions of their employees.

Most often, banter will be raised in the territory of harassment claims. The Equality Act 2010 prohibits unwanted conduct relating to a protected characteristic which has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Employers have attempted to rely on banter to argue that the conduct in question wasn’t connected to a protected characteristic, didn’t create a hostile or degrading environment or wasn’t taken offensively.

Sometimes, this works. In Evans v Xactly Corporation Ltd, it was held that being called a “ginger fat pikey” did not amount to harassment where banter was considered the norm within the office culture and the claimant was not offended by it.

However, the opposite was true in Moore v Sean Pong Tyres Ltd wherein £20,000 was awarded as compensation for race discrimination. Mr Moore made a complaint about a colleague, Mr Owusu’s, behaviour towards him. Mr Owusu repeatedly made comments about Mr Moore’s age and ability to do his job, consistently labeling him an “old white guy.”

The tribunal found that although it is possible for workplace banter to exist and such comments to be made without amounting to discrimination, this was not the case on the facts. Although the tribunal accepted that Mr Owusu may not have appreciated the effect he was having on Mr Moore, it was held that the comments were largely one sided, regular, and abusive. The defence argument of banter accordingly failed.

Staying on the right side of the line

The main takeaway from banter-related cases is that they are all entirely fact specific. There are some lessons to be learned by employers seeking to prevent bullying complaints from snowballing into causing real reputational damage. Employers are advised to:

• implement conduct policies to set the bar for acceptable workplace behaviour;
• provide training on appropriate and inappropriate behaviours in the workplace;
• action any complaints of bullying or harassment swiftly and in strict accordance with their grievance procedures/ ACAS Code of Practice on Disciplinary and Grievance Procedures by conducting an independent and impartial investigation; and
• importantly, not to dismiss a complaint due to a perception that comments are just banter.

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