"It's just banter mate!", but when does a joke at work cross the line?

Tom Clarke
Solicitor, Employment Law & HR

The number of Employment Tribunal cases that cite ‘banter’ in the workplace has reached a record high, with a reported 45% increase in references in 2021 from the year before.

There is no denying that humour is beneficial to a work environment, helping to improve staff morale and cohesion. However, it is easy for jokes, intentionally or not, to go too far, be interpreted the wrong way or simply be offensive. This can lead to difficult and time-consuming grievances or even costly Tribunal cases, something that all employers want to avoid!

Recent case law has made clear that where workplace ‘banter’ oversteps the mark it can amount to unlawful discrimination, typically harassment, in cases where comments make reference to the ‘protected characteristics’ under the Equality Act 2010. These ‘protected characteristics’ are race/ethic origin, sex, sexual orientation, age, religion/beliefs, pregnancy, gender re-assignment, disability and marriage/civil partnership.

Unfortunately, determining what is reasonable or appropriate behaviour is somewhat of a ‘grey area’. A complainant’s reaction to what is termed ‘unwanted conduct’ (such as ‘banter’) has to be reasonable, and context is therefore very important. For example, a widely reported claim of discrimination failed despite the fact the claimant had been called a “fat, ginger pikey” because it was found that the office culture normalised banter and the claimant himself had been involved in similar behaviour, so couldn’t establish that it was unwanted.

However, it is possible for an individual who is not the intended recipient of a comment or joke to be offended by it. If that response is objectively reasonable, they too could pursue a claim, for example, in the scenario above, if someone had overheard the comment but hadn’t themselves been involved in similar conduct. Therefore, it shouldn’t be assumed that all employees are okay with such banter. There is no requirement for employees to have explicitly asked for the conduct to stop.

Although much workplace banter takes place in person, the significant increase in home working can be problematic too.

Many colleagues will now communicate through direct messaging platforms or ‘slack’ channels, which can be a great tool for businesses. However, tone and delivery can sometimes be misinterpreted, and in some cases, individuals can feel more confident than they would in person. The written evidence is also there for all to see.

So what can employers do?

Every employer has a duty of care to safeguard the welfare of their staff and ensure that the working environment doesn’t become toxic for workers because of a misunderstanding of the line between ‘a bit of banter’ and workplace harassment.

This is important not only to avoid grievances and tribunal claims but also to foster a positive and diverse environment that allows businesses to flourish and be productive. In many cases, this starts with training. We advise that, if possible, equal opportunities training should be provided to all employees to raise awareness and ensure that everyone understands what is and isn’t acceptable at work.

This, combined with robust policies and procedures can, in certain circumstances, also help protect employers if there is a Tribunal claim. Employers must also ensure that any complaints are appropriately dealt with and that managers are trained to know when to intervene by proactively preventing issues arising and effectively dealing with them if they do.

Contact Tom to discuss how we can help.