Most employers accept that some element of banter and humour in the workplace is normal, and a friendly working environment is to be encouraged. However, there is a fine line between office banter and harassment. This issue has recently made headlines after being the focus of several recent discrimination claims.

Compensation varies depending on the severity of the harassment, however can be expensive, with the average Employment Tribunal award for race discrimination being £102,259.

In addition to the costs of paying compensation, the damage to an employer’s reputation from such claims can be irreparable. These cases highlight the importance of employers of ensuring their employees tread the right line in practice.

What is the risk?

Under discrimination law, behaviour can amount to harassment if it is “unwanted conduct that has the purpose of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”. A number of different characteristics are protected, including harassment connected to sex, age, sexual orientation and disability.

Whether the behaviour created an offensive environment is judged from the claimant’s point of view, so the intention behind the remark, or the fact that others would have simply found it funny, does not prevent a claim.

A key risk for employers is that employees can claim for harassment even if they don’t have the characteristic themselves. This was highlighted in one of the recent cases, where a heterosexual employee was successful in a sexual orientation discrimination claim as he was referred to as a ‘gay man’ after he admitted he was not a football fan.

Employees can also claim if they overheard and were offended by comments directed at someone else.

There have been a handful of cases recently which show how innocent banter can often have an undesired effect where it crosses the line into inappropriateness. For example, in one recent case, likening a colleague to women on the programme ‘My Big Fat Gypsy Wedding’ was found to be direct race discrimination, racial harassment and constructive dismissal. In another, making comments such as ‘you are not 25 anymore’ was found to be age discrimination when made to an employee in his 50s.

Office banter as a defence?

When defending harassment claims, employers often argue that the comments made were made in the context of friendly banter between employees, which was common place in the workplace and did not in fact offend the employee, or couldn’t reasonably be taken by them to offend.

This angle of defence can be successful if proven. For example in one recent case for harassment connected to race and disability, the employee was subject to various offensive comments made on the basis of his weight, background and hair colour. The Employment Tribunal decided that the employer’s office was one where teasing and banter was common. Indeed, the employee had been previously warned for making similar comments to other colleagues. The Employment Tribunal acknowledged that the behaviour appeared to be accepted and treated as normal within the office and by the employee, and the employee was unsuccessful.

However, employers ideally wish to avoid being in the position of relying on an atmosphere of office banter to defend claims and of course this will not succeed in cases of clearly inappropriate and unwanted comments.

How do you judge the right line?

A recent survey found that whilst 80% of the workers believed they can easily draw the line between banter and harassment, when asked to respond to various examples as to what was and was not acceptable, they were not in fact able to judge the right line most of the time.

This is particularly difficult where employees regularly socialise and have personal relationships outside of work, where employers can often get caught up in disputes where these relationships breakdown.

This is one area where employers must provide clear guidelines and training to staff, including specific examples of what could amount to harassment, even if unintended to be offensive.

It is important that individual employees are aware that they can personally face harassment claims in the Employment Tribunal, in addition to their employer, and have joint liability to pay any compensation awarded.

What should employers do?

Employers have a potential defence to such claims if they can show that they took reasonable steps to prevent the harassment occurring.

The starting point is to have up to date and comprehensive Equality and Diversity and Anti-Bullying and Harassment policies in place. Employers then need to demonstrate that they live by these policies in practice. As a minimum this should include equality and diversity training for all employees, and specific training for those in management positions. Employers should also demonstrate that employees are encouraged to raise concerns where they arise, and that these are investigated and dealt with appropriately, for example via the employer’s disciplinary and grievance procedures.

If you are interested in learning more about Equality and Diversity in practice, our next training session ‘Equality and Diversity Line Manager Training‘ is on 9 March 2022. Alternatively, we can also provide training sessions at your organisation. Please contact Jane Biddlecombe for further information.