It is not uncommon for employees to joke in the workplace. It helps staff bond and can create a positive atmosphere. The majority of “banter” is harmless and keeps up good spirits whilst at work. Unfortunately, sometimes jovial behaviour can be taken too far and an employee could find themselves being subjected to harassment at work which may give rise to claims against their employer and or the harasser.

Potential claims could include claims under the Protection from Harassment Act, discrimination harassment claims under the Equality Act, personal injury claims for any ill-health suffered and allegations of bullying and harassment leading to the raising of a formal grievance and claim of constructive dismissal. This is where the employee resigns in response to a breach of contract.

The difficulty for employers is considering at what point “banter” crosses the line and becomes inappropriate or unlawful behaviour.

Under the Equality Act 2010, harassment due to one of the protected characteristics is unlawful. The protected characteristics are:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity.
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

Harassment is defined as unwanted conduct that has the purpose or effect of violating an employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Points to be mindful of are:

  • A one-off incident can amount to harassment.

  • The victim need not have made the perpetrator aware that the conduct was unwanted.

  • Conduct can amount to harassment if it is related to a protected characteristic. This can cover, for example:

    • conduct that, regardless of the form it takes, is by reason of a protected characteristic (for example, shunning a co-worker because he is gay; because he is perceived to be gay; or because somebody else is gay); and

    • conduct that is otherwise related to a protected characteristic because of the form it takes(for example, engaging in racist or homophobic banter that might offend colleagues regardless of their race or sexual orientation).

  • The Equality Act protects an employee against harassment based on someone else’s protected characteristic (associative harassment), or based on the perception that the employee has a protected characteristic.

To amount to harassment, the conduct must have the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim. Where the victim claims that the conduct had this effect (although this was not the conduct’s purpose), the Tribunal must consider whether it was reasonable for the conduct to have that effect. This avoids liability arising where the victim is “hypersensitive”.

In the recent case of Evans v Xactly Corporation Limited, it was shown that the background circumstances are key and the culture of “banter” in the workplace can in certain circumstances assist in an employer’s defence of a discrimination claim.  In this case, it was held that an employee being called a “fat ginger pikey” did not amount to disability or race harassment.  The Tribunal looked at the working environment and found that the employer’s culture was one of banter and teasing on a regular basis.  The Claimant himself would participate and referred to colleagues as a “pudding” and a “fat paddy”.  The Tribunal found that the comments were not unwanted given that the Claimant was such an active participant in the culture of banter and did not have the purpose of violating his dignity or creating an intimidating environment for him as he was not offended. Cases are therefore very fact sensitive.

There are a number of ways in which an employer can create a positive workplace culture to minimise the risk of employment law claims:

  • Provide staff with equality and diversity awareness training which could reduce the risk of potentially offensive remarks in the first place. Train managers to be mindful to look out for any signs of harassment in the workplace.

  • Implement clear policies regarding bullying and harassment and equal opportunities and review them regularly to ensure they are up to date. Ensure that these are properly communicated to staff

  • Deal with issues when they arise and do not allow them to fester as the situation usually gets worse.

  • Act promptly if a member of staff makes a complaint or raises a grievance. Carry out fair and consistent investigations and take legal advice at an early stage to minimise the risks to your business

  • Take appropriate disciplinary action against harassers. Apply a fair and consistent approach.

For advice on dealing with workplace harassment claims within your business contact Farleys’ employment law specialists on 0845 287 0939 or email the team.