“Lighten up, it’s just banter!”, “but it was just office banter”.
There are some phrases that make an employment lawyer’s head fall into their hands and ones like these will often do just that.
dictionary definition of banter is the playful exchange of teasing
remarks. Sounds harmless? Yes, if that's all workplace banter is.
However, all too often it’s far from harmless and can lead to claims
such as discrimination, bullying, harassment and constructive unfair
A total ban on banter is always going
to be impossible to enforce and also would make the workplace a very
boring environment to work in. However, it’s important for both
employers and their staff to be aware of the risks involved when banter
oversteps the mark and crucial that they avoid it doing so.
Assessing the banter
workplace banter is linked to a ‘protected characteristic’, then it
runs the risk of amounting to unlawful discrimination and harassment,
with both the employee making the remark and also their employer exposed
to an Employment Tribunal claim being made against them.
‘protected characteristics’ covered by the Equality Act 2010 are age,
sex, race, religion, belief, disability, sexual orientation, gender
reassignment, pregnancy, maternity, marriage and civil partnership. If
an unwanted comment linked to one or more is made, then the comment will
be unlawful discrimination and harassment if it was either:
(a) intended to upset or offend, or
(b) it had that effect and it was reasonable for the recipient to feel upset or offended.
if banter isn’t linked to a protected characteristic, it can still give
rise to a tribunal claim if it causes offence and the person on the
receiving end of the comment resigns in response and claims constructive
The important point that every employer should
bear in mind is that the effect of workplace banter can be assessed
subjectively, which means it can be assessed based on the individual’s
interpretation of the comments, even if the comment was not intended to
An employer must also bear in mind that comments perceived
as inoffensive jokes or harmless banter one day might cause offence the
next. In addition, comments taken as amusing banter by the recipient
may cause offence to a third party, such as a fellow employee, who then
could have a claim.
However, legal claims linked to banter can be
highly fact sensitive and context specific and an example of this was
the case of Evans v Xactly Corporation Limited.
Mr Evans worked in
a sales team in an office environment where banter and teasing were not
an unusual occurrence. He brought various claims including harassment
and discrimination. He alleged that during his employment he was called
“fat ginger pikey” by his fellow colleagues. He was diabetic and also
had links to the traveller community. However, Mr Evans was found to
have insulted co-workers himself and it was decided by the Employment
Appeal Tribunal (EAT) that Mr Evans had not taken offence and that he
had not suffered unlawful discrimination or harassment.
assessing the banter, the EAT highlighted the need to analyse the office
culture and the relationship between the co-workers. In this case, the
EAT decided that Mr Evans wasn’t a victim of the discriminatory
harassment, but was an active participant in the culture of banter, the
words didn’t have the purpose of violating Mr Evan’s dignity and he
However, while this was the decision in the Evans
case, it needs to be remembered that the facts in this case were very
specific. Any banter linked to a protected characteristic will open
employers and individuals to possible costly claims for compensation.
How can you protect your business?
To remain risk free, is banning banter the only way to ensure that claims of this nature are prevented?
Certainly, employees should be told that they must avoid making comments linked to protected characteristics.
what if the employees still make such comments? Is the employer then
liable for the employees’ behaviour? There is a defence available to an
employer if it can show that it took “all reasonable steps” to prevent
the employee from doing the discriminatory act.
Some examples of steps employers may wish to take are:
ensure that robust equal opportunities and anti-bullying and harassment policies are in place
communicate these to staff and ensure they are enforced in practice
encourage employees to raise their concerns with management either informally or through a formal grievance
deal with these complaints promptly and seriously
make clear to staff that any unacceptable banter may result in disciplinary action.
we ban banter? Or should we allow it? That is a question for you to
decide, but be aware that if you decide to allow it, you need to take
steps to ensure that it does not put you at risk of a successful
discrimination/harassment claim. Make sure you have policies in place
and ensure the workplace is professional, respectful and free from
offensive comments, however well intended.