"It was just banter... a bit of a joke!"

  • Employee Conduct
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The dreaded B-word. People use it all the time. You might even use it yourself. In its original sense, banter is completely fine. After all, who doesn’t enjoy some innocent, light-hearted teasing and joking with friends and colleagues? But in recent years, the word banter has taken on a somewhat darker use. Defending the indefensible Banter is often the first defence someone utters if they’re accused of bullying, being overly aggressive, or even taking part in unwanted sexual behaviour. It implies that the accused has done nothing wrong, and it’s the victim’s fault for being over-sensitive to what was merely a bit of ‘fun’. That’s dangerous. Especially in the workplace, because it’s a defence for misconduct. And it’s why so many employers have their purses emptied and reputations ruined at tribunals. A recent ‘banter’ case Early in October 2017, Lisa Vickers, a factory worker from Ashton-under-Lyne, won £10,000 in compensation after her manager wrote a lewd comment in her 40th birthday card, humiliating her. The manager subjected many of the workers to daily comments of a sexual nature, though Vickers described him as aiming an ongoing campaign at her in particular. When Vickers saw the birthday card comment, it was the final straw. So she took the employer to an employment tribunal. He defended his comments in the manner you might expect: he blamed banter. Not only that, he said Vickers actually joined in with it. The tactic didn’t work, and she successfully claimed sexual harassment and won huge damages for injury to feelings. Employers are at risk As an employer, you are responsible for your employees’ conduct. And if someone’s proven to cause harm to another employee in the name of banter, you can be liable for it. This is called ‘vicarious liability’, and it means that you should seek to limit or prohibit banter (or behaviour that crosses the line) at work. How to limit banter

  • Reducing offensive, ‘jokey’ behaviour is hard. Policing it even more so. As a minimum, make clear rules on what is and isn’t acceptable to say at work.
  • Give all staff and managers training on the rules.
  • If you have a zero tolerance policy on such behaviour, enforce it. Don’t treat two separate, similar acts differently and take disciplinary action when necessary.
  • Explain which events outside of work are linked to your staff’s employment and remind them that company rules continue to apply during those times. Examples include working lunches, client meetings, work-organised social events and company away days.
  • Ensure your equality and diversity training prohibits jokes about protected characteristics such as age, sexual orientation and so on.
  • Investigate all staff reports of misconduct and impose disciplinary sanctions to deter any other employees from engaging in such behaviour.
  • Set clear rules about ‘banter’ in written communication, and have an email policy that prohibits emails, notes and letters containing inappropriate messages.

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