Increase in banter-related tribunal claims

“Banter” is too often used as an excuse to cover up unlawful attitudes and behaviours. Failure to adequately address inappropriate actions and creating a culture which does not facilitate diversity and inclusion can prove detrimental for organisations. Indeed, the number of employment tribunal cases in which workplace banter was cited rose from 67 in 2020 to 97 in 2021, a 45% increase, highlighting the need for employers to do more to prevent illicit situations.

In some cases, an individual may not mean to deliberately cause harm. But, under the Equality Act 2010, unlawful harassment occurs where a person engages in unwanted conduct related to a protected characteristic, and this has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Banter can include jokes and comments made both in-person and virtually, and verbally or in writing, through conversations, emails, instant messaging platforms and pranks. However, what one employee sees as a joke can be extremely damaging to another. Therefore, employers should be conscious of inappropriate remarks being utilised in the workplace and ensure that the “banter” does not create an uncomfortable or offensive environment for any staff member, as this will likely instead be seen to be harassment.

Respondents regularly attempt to plead that bullying or harassment was “workplace banter,” but more often than not, these defences prove unsuccessful, and the employee wins their claim. This was seen in the following cases:

• An employee of Indian origin was called a “cheeky monkey” during a business-related round of golf (Basi v Snows Business Forms Ltd).
• An employee who was teased that if he didn’t like football, he “must be gay then” (Austin v Samuel Grant (Northeast) Ltd).
• An employee called “half-dead Dave” due to his age (Robson v Clarke’s Mechanicals Ltd).
• An employee who was called a “dinosaur” due to her age and sex. (A v Bonmarche Ltd).

But, it’s interesting to note that if the employee engages in the “banter” or there is a workplace culture whereby comments are regularly made and accepted, a tribunal claim is less likely to be successful. This was seen when a sales rep who was taunted as being a “fat, ginger pikey” in respect of his weight and Traveller background, failed in his claim because the tribunal ruled that the office culture normalised banter and the claimant had engaged in similar behaviour himself. This being said, businesses should not adopt an “everyone thinks it’s a joke and takes part” attitude to normalise inappropriate behaviour. Instead, they should actively discourage banter and set clear boundaries and expectations for what is acceptable in the workplace.

Having clear policies and zero-tolerance communication on workplace bullying and harassment can help protect organisations against claims, as can regular staff training and a culture of professionalism. Organisations might need to consider establishing clear standards of practice to remove any element of improper behaviour and make clear that the workplace is an environment of respect and equality.