Office Banter: Employment Law Do’s and Don’ts

Author:
Aneil Balgobin
Partner, Head of Employment Law
Date:
18/02/2019

“It Was Only Banter!”

A line our Employment Solicitors have heard many times over the years, when reviewing conversations between co-workers, as well as workers and third parties such as customers. But so-called banter in the workplace can lead to a person facing disciplinary charges and another claiming for alleged discrimination by an employer.

Every workplace has a particular level of conduct which is accepted through words spoken between colleagues. But what might be acceptable in an office will be different to what’s okay on a building site, for example.

That is in my view a reality of different workplaces, so what might be deemed improper depends heavily on the nature of the environment and how co-workers normally behave.

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How Do We Define Banter?

My opinion is that it includes words spoken between co-workers which aren’t part of their ordinary work conversations. It would include personal comments, insults and observations about another, maybe concerning their behaviour, appearance, weight, clothes, football team supported and the like. It might include a comment about a person’s race, gender, disability or another factor such as sexual orientation.

Historically, comments about matters such as race and sexual orientation might have been accepted or perhaps tolerated, but the difference now is that the Equality Act protects individuals when it comes to certain “protected characteristics”. There’s also a much greater recognition across society that certain comments are not acceptable.

The Consequences of Offensive Banter

The word banter can be an excuse for bullying and individuals may feel compelled to tolerate the behaviour to fit in, or even to join in. But banter can be insulting and can lead to disciplinary action, even if it’s not discriminatory.

While some anti-discrimination legislation dates back to the 1970s, it’s only in recent years that harassment has become a specific cause of action before an Employment Tribunal. In the Equality Act, harassment based upon factors such as race, gender and the like can lead to an Employment Tribunal Claim, and an award of damages, including for injury to feelings.

The ordinary law of misconduct will be considered in relation to words spoken, taking account of the employer’s disciplinary procedure and any dignity at work policy.

Case Study: Evans v Xactly Corporation Limited

The Employment Appeal Tribunal decided recently an important case relating to banter and harassment involving a sales team in an office. Some of the words used were found by the Tribunal to be offensive, but by reference to the statutory test, the Tribunal decided that the claim wasn’t made out by reference to race and disability discrimination.

The claimant (person making the claim) relied upon different insults, including by being called a fat ginger pikey, based upon an association to the travelling community. He was found to have insulted co-workers himself and the office culture tolerated high levels of sometimes offensive banter between employees.

The Employment Tribunal decision was approved at the Employment Appeal Tribunal and the Judgment records the Tribunal as finding:

“The office culture was of jibing and teasing: a way of operating which appears not to be unusual for competitive sales people working under stress to achieve their targets. … called it “banter” in that, as he explained, no-one was seeking to offend and the receiver was not offended.”

The Employment Appeal Tribunal referred to the need to analyse the office culture and the context of the allegations, and the relationships between the co-workers. On the facts, the Employment Appeal Tribunal approved the finding that the claimant wasn’t the victim of discriminatory harassment because:

      • It recognised that comments made weren’t unwanted, as the claimant was an active participant of the culture of banter.
      • The words didn’t have the purpose of violating the claimant’s dignity or creating an intimidating environment for him.
      • The comments didn’t have the effect of violating the claimant’s dignity or creating an intimidating environment for him, as he wasn’t offended (a finding of fact).

In the circumstances, it wouldn’t have been reasonable for him to have considered his dignity was violated or the environment hostile by reference to the context and material facts relevant to this case.

It’s a reminder that we need to understand the link between the words used and the context of the exchanges between the individuals concerned. In practice, my advice would be to recognise that any discriminatory insults, comments or banter should not happen in the workplace.

Workers can insult each other and robust conversations are not unlawful. However, when banter crosses a line and involves bullying and intimidation, it may be classed as serious misconduct, and discriminatory banter will open businesses and individuals to possible claims for compensation.

More importantly, we must all recognise the right to go to a working environment free of discrimination and when banter causes offence, the law exists for victims to seek compensation. All employers should encourage training for workers and managers to understand internal polices and to make sure that all stay within the acceptable boundaries.

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