Workplace Banter - Joke or Harassment?

Another week and another claim across my desk where a no malice intended ‘joke’ has resulted in a Tribunal claim being made against my employer client for harassment. The trend in these types of cases is increasing year-on-year. Employment tribunal claims relating to workplace ‘banter’ rose by 44% in 2020 and 2021. Whether this increase be a result of harassment being more highly publicised since the #metoo movement and employees feeling more empowered to raise these issues or because they are now less tolerant of the behaviour, the statistics show that unless businesses start addressing workplace banter, they are rolling the dice with an employment tribunal claim. The defence of it was just ‘banter’, harmless, jovial, workplace fun, is proving to be less and less strong at resisting these claims.

What is Harassment? The Legal Position. 

Harassment, under the Equality Act 2010, occurs when an individual is subjected to unwanted conduct related to a protected characteristic (sex, age, race, religion, disability, sexual orientation, gender reassignment), that has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Harassment in relation to sex, also has two further types of harassment unwanted conduct of a sexual nature and less favourable treatment for rejecting or submitting to sexual harassment.

Harassment is usually, though not always, the provision where workplace ‘banter’ claims are formed. This legal protection not only protects an individual on the receiving end of ‘banter’ that oversteps the mark, but it also protects those who have overheard it. Many claims have been made where an individual has overheard ‘jokes’ related to a protected characteristic between colleagues, who ‘give as good as they get’ and are not ‘unwanted conduct’ between those participating individuals. This is the case whether or not the complaining individual shares the protected characteristic or not.

To make matters even more challenging for employers, the legal test cares not for the intention of the person making the comment, but for how it was received and the effect it had on the person bringing the claim. Purpose or effect. The effect is a subjective test. What one person may find an hilarious joke, another overhearing it can be deeply offended.

Harassment in the legal sense is wide – which makes the balancing act between what is workplace banter v an unlawful act of discrimination a very fine line!

Harassment Cases

To put this into real life context, lets have a look at some cases that have been through the Tribunal where the line is not so clear cut or obvious.

Sport banter – well that makes it ok then: Austin v Samuel Grant (North East) Ltd

Austin, a heterosexual male, was asked by a colleague if he liked football. Mr Austin did not and said so. From that day he was repeatedly called ‘gay’ by his colleagues. When Mr Austin raised a grievance, it was dismissed on basis it was workplace banter and the expression was ‘normal’ in the North East England football circles. Therefore, Mr Austin should see it as a joke. The Tribunal disagreed. Mr Austin found it offensive, and the Tribunal accepted that. The fact several others saw no harm in the comment, was neither the legal test to establish the claim nor a defence to it.

‘Birds’ – not the flying kind: Lacatus v Barclays

This claim was made under the direct discrimination provision; however, it could have also easily been brought under harassment too. Lacatus, a junior banker at Barclays, claimed Mr Kinghorn, repeatedly used the expression 'birds' in the workplace. A common term that has been heard since the early 90s, which most will recognise as a reference to a female i.e.  ‘she’s my bird’. Ms Lacatus had objected to Mr Kinghorn's use of the word the first time he used it, but he had continued to use it in what the Tribunal described as a "rather puerile attempt to be ironic". The Tribunal found the use of the word ‘bird’ in this context was derogatory and ‘sexist’, even those Mr Kinghorn did not intend it to be. Ms Lacatus did not initially raise a formal grievance bringing to her employers’ attention. When accessing this the Tribunal found it was reasonable and understandable she did not, because she feared for her career, being a junior employee and Mr Kinghorne being a manager.

‘Not now Stacy’ – Macken v BNP Paribas London Branch

A high profile and widely reported case where Ms Macken was awarded in excess of £2 million compensation (£35,000 for injury to feelings). This was a multi-discrimination claim, and an award at this level is rare. However, part of the award was made for comments made to Ms Macken including the phrase ‘Not now Stacy’, which had become a common place response to her questions, not only by her manager but it had filtered to her colleagues repeatedly using it. The Tribunal found it was intended to demean her. It is also the harassment elements of this claim that the headlines were made of, and they are pretty embarrassing for BNP. Ms Macken remains an employee of the bank and it must continue with this employment or face further complex litigation.  The facts of this case present an interesting example of what can happen if an employer fails to address inherently sexist behaviour in a male dominated environment, as well as gender pay issues.

Wasn’t offensive to me or them: Keenan v Benugo Ltd

This case concerned an incident where the civil partner of a gay employee was asked whether he had come to see his "husband or wife or whatever he is".  During the Tribunal another gay manager at the organisation provided witness evidence to say that he, a member of the LGTBQ+ community did not find the question offensive and he did not believe many would.  The Tribunal found his opinion was irrelevant. The legal test was whether Mr Keenan found it offensive, and the Tribunal found he did. The claim succeeded.

What to wear - Mrozinski v Q Medical Technologies Ltd

Mronzinski accused her line manager of six acts of harassment. Before the Tribunal claim Ms Mronzinski had not previously complained about the behaviour of her line manager to her employer. The Tribunal found that four of the accused events she had found humorous – thus they were not unwanted conduct. However, the other two acts, including one where she was told she should dress seductively for a client meeting to secure more business, was harassment and it did not matter to the Tribunal that she had not brought this behaviour to the attention of her employer before.

Didn’t bother her for years, clearly not unwanted!? Munchkins Restaurant Ltd v Karmazyn

In this case Ms Karmazyn had put up with conduct for years and had on occasion found she participated in it. The Tribunal found this did not mean it was not ‘unwanted’. They found as a young female waiting staff, putting up with and sometimes participating in the banter from an older, male proprietor was a coping strategy. This case clearly demonstrating the need of caution to be provided when dealing with a more junior and/or vulnerable cohort.

Go back home – Ioan v Darcy Lou Ltd

Ms Loan was told to ‘go back home, go back to Romania’ on just one occasion. Her claim succeeded and this one comment saw an award of £7,000. This may seem an obvious case, but I recite it because it is a comment, I have seen repeatedly in my work practice and there are many other reported cases where similar comments have been made and claims for harassment have succeeded (Mazur v Beverley Savage, Nazarczyk v TJ Morris Limited).

What Can I Do?

As an employer, it can feel like an impossible task to manage banter in the workplace. You want the workforce to have camaraderie and for the workplace to be fun. Particularly as studies show a direct link between increased productivity and staff who feel part of a good team and enjoy the working environment. However, a harassment claim made against the business can severely damage the reputation and goodwill of a business. These are the type of claims that make the best click-bate headlines. Research is also showing that employees are also leaving jobs because of negative banter (4% surveyed The Banter: Just a bit of fun or crossing the line?). Recruitment issues have been a number 1 concern for employers for the last decade. Businesses cannot afford to be losing staff for the ‘I’m just joking’ or ‘the world has gone PC mad’ or ‘it’s harmless fun’.

As the employer you will also be held responsible for any harassment by your staff if it has occurred ‘in the course of employment’ – this includes work social events. It is possible to defend a harassment claim where an employer has taken all ‘reasonable steps’ to avoid such conduct.

There are some practical ways you have manage the finely lined ‘banter’ risk. Firstly, as business owners, it starts with you. You need to be crystal clear in your expectations of the standards you expect from your staff. This can be verbally; but also ensure it is contained in a policy and/or mission-type statement. Keep these under review and update where needed. Let staff know that what one may feel is a ‘joke’ could be offensive to another. Remember there is no defence of ‘I was only joking’ in the Equality Act 2010!

Also, role model the behaviour you expect when you are in the workplace and at business events.

Hold diversity and equality training with staff – this is an invaluable tool as many individuals do not appreciate the law on harassment is not about their intention, and is more how another has perceived it, whether the ‘banter’ was aimed at them or simply overheard.

Make the steps of how to report such behaviour clear, together with reassurance that bringing such issue to management attention will not have adverse repercussions. You want an environment where staff feel they can speak-up, whether the conduct is directed at them, or they have simply observed it.

If a complaint is made, deal with it fairly -usually following your grievance procedure. Where you have found likely harassment has occurred, address this conduct through your disciplinary process and take what corrective measures necessary to prevent reoccurrence. For example, reiterating your business expectations, or addressing any cultural issues. 

Monitor your social media policies – many colleagues socially connect, and many more employees feel their social media accounts are their private life and they have free licence to post whatever they wish. It is very easy for these issues to spill over into the workplace.

If all else fails or addressing this topic feels overwhelming because of the current existence of banter in your workplace (particularly if you know in the workplace culture the banter is endemic) please contact us to discuss. You are certainly not alone and no matter how bad the ‘banter’ is, we will be able to provide you support and assistance. 

Our Employment Department is led by Kimberley Whalen-Blake, Director and Head of Employment. Click here to learn more about Kim. Please email Kimberley who will be able to give you a free, no obligation quote tailored to your needs and budget.