April Fool’s Day is the one day of the year when practical jokes and playful teasing are almost expected in the workplace. A harmless prank here, a witty remark there – what’s the worst that could happen? Well, as many employers have learned the hard way, ‘banter’ isn’t always just a bit of fun.
In fact, when workplace jokes cross the line, they can lead to serious legal and reputational consequences. With April 1st as the perfect backdrop, let’s take a closer look at the fine line between workplace humour and conduct that could result in claims for harassment, bullying, or even unfair dismissal.
‘It was only a bit of banter’ – the serious side of workplace jokes
The Oxford Learners Dictionary defines ‘banter’ as ‘friendly remarks and jokes’. On the face of it, you would think that workplaces would welcome ‘banter’ with open arms – it puts people at ease, lightens the mood and helps the working day go that bit quicker.
However, ‘banter’ is not always as ‘friendly’ as it first appears. Unfortunately, harassment and bullying can often be found lurking behind its playful exterior. Both are major workplace issues – not to be taken lightly.
How can you create a working environment which has personality – allowing people to be their authentic selves – whilst controlling the risk of bullying and harassment in the workplace?
Banter and harassment
A bit of banter in the workplace is fine …. until it’s not. If the ‘banter’ relates to a protected characteristic (such as sex, age or disability) then you are in the danger-zone for harassment.
Harassment is defined in the Equality Act 2010 as ‘unwanted conduct’ related to a protected characteristic which has the ‘purpose or effect of violating an employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Compensation in harassment claims is potentially unlimited and includes injury to feelings.
To be harassment the conduct has to be ‘unwanted’. The problem you’ve got is distinguishing whether employees are genuinely and happily participating in the ‘banter’ (in which case the harassment risk is low) or whether employees are putting on a front to protect themselves from what is unwanted conduct (in which case you might be in trouble). Two cases here illustrate the fine line you are all treading:
In Munchkins Restaurants v Karmazyn young female waiting staff participated in sexual banter with the male owner as a coping strategy. They were made to wear short skirts and subjected to talk of a sexual nature by the owner, including talk about sexually explicit photographs that were lying around in the restaurant. They sometimes asked the boss questions about his love life as they found this made him easier to handle. The fact that the employees had participated in the ‘banter’ did not mean that it was not ‘unwanted’. The employer was found liable for harassment.
In Evans v Xactly Corporation by contrast, there was an office culture which involved teasing colleagues. In the course of this banter, an employee was called a ‘Fat, Ginger, Pikey’. He had also referred to his colleagues in abusive terms. He claimed harassment on grounds of disability and/or race. His claim failed. The workplace culture was found by the Employment Appeal Tribunal to be ‘indiscriminatingly inappropriate’. Against that background, the comment was not ‘unwanted’ by the employee.
Behaviour can be harassment even if the purpose of the conduct was not to harass. If the conduct has the ‘effect’ of harassing then, as long as the victim is not hyper-sensitive, this will be harassment. It is generally up to the victim of the alleged harassment to decide whether or not a particular type of treatment is offensive to him or her personally. People are different, and what one employee finds hilariously funny may be offensive or degrading to another. In judging whether or not particular conduct may amount to harassment, it is important to bear in mind that the motive of the ‘harasser’ is largely irrelevant. In Robson v Clark’s Mechanical an employee nearing retirement was referred to as ‘Half-dead Dave’ by colleagues, including his supervisor. He brought a claim of age-related harassment. His supervisor told the tribunal that the name had been just ‘banter’ and there was no malice involved. The tribunal found that the employee saw the comment as reflecting his age, something he felt vulnerable about. He felt that his job was at risk if he made a fuss. His claim succeeded and he was awarded almost £25,000 compensation.
To minimise the risk of harassment arising from ‘banter’ you have to somehow find a happy medium which does not unduly stifle the workforce but which sets clear boundaries. Appropriate steps include:
- a clear harassment policy which explains the legal position; workplace expectations and sanctions for breach
- emphasising the importance of respecting equality and diversity
- an open workplace culture where employees feel safe to raise any banter that makes them feel uncomfortable
- regular training on harassment for all employees, with additional training for managers – workplace culture tends to be a ‘top-down’ issue
These steps have become all the more important since the new positive duty to prevent sexual harassment in the workplace came in late last year.
Banter and bullying
According to the Oxford Learners Dictionary, to bully is ‘to frighten or hurt a weaker person; to use your strength or power to make somebody do something’.
Behaviour which, on the face of it, looks like ‘banter’ can easily stray into the realm of bullying.
If bullying is related to a protected characteristic then it is likely to constitute unlawful harassment – but what if there is no protected characteristic involved?
There is actually no straightforward claim that an employee can bring for ‘bullying’ in and of itself. The major risk is that an employee who is experiencing workplace banter as bullying could resign in response to that behaviour and claim constructive unfair dismissal. Constructive unfair dismissal occurs where an employee with over two years’ service resigns their employment in response to a fundamental breach of contract by the employer. Allowing an employee to be subjected to bullying in the workplace could breach the implied term of trust and confidence – entitling the employee to resign and bring a claim.
In Minto v Wernick Event Hire Limited, a sexual harassment case, the tribunal emphasised the link between ‘banter’ and ‘bullying’. The tribunal said: “‘Banter’ is a loose expression, covering what otherwise might be abusive behaviour on the basis that those participating do so willingly and on an equal level. It can easily transform into bullying when a subordinate employee effectively has no alternative but to accept/participate in this conduct to keep his or her job.”
To reduce the bullying risk posed by banter employers should:
- Have a clear anti-bullying policy in place which makes it clear that bullying at work is not acceptable;
- Adopt a workplace culture where bullying is called-out and employees feel empowered to speak up;
- Train managers in how to behave appropriately with those under their direct management – bullying often stems from an imbalance of power or influence.
Banter and misconduct
Employers should be ready to take action against employees whose ‘banter’ strays into the realm of bullying or harassment. Bullying and harassment are clearly very serious disciplinary matters which, if made out, can justify immediate dismissal. They should be listed as examples of gross misconduct in any disciplinary policy to reinforce this.
However, employers do need to be careful not to react too explosively to ‘bantering’ workplace antics, as this recent Employment tribunal claim illustrates.
The extraordinary case of the snakeskin in the pigeon-hole
In Richardson v West Midlands Trains Ltd, Mr Richardson left a tarantula skin and snakeskin in the pigeonhole of a colleague who, he knew, disliked spiders and snakes. He was dismissed for gross misconduct. The tribunal held he had been unfairly dismissed and re-instated him. They provided some helpful guidance on acceptable ‘banter’:
- context is very important;
- employers should seek to understand the employee’s motivation in performing the prank;
- Mr Richardson’s conduct was still misconduct, it just wasn’t serious enough to amount to gross misconduct; and
- continuing a prank after being asked to stop could be a more serious offence than the prank itself.
It’s essential to strike the right balance between humour and professionalism. For HR, the challenge lies in maintaining the delicate balance between fostering a fun workplace culture and ensuring a respectful and inclusive environment.
By all means take action if employees harass or bully in the workplace but if it is genuine banter, was meant with no malice and the employee stopped if and when asked to do so – then think carefully about what a reasonable response would be. After all, we are living in a world where it was unfair to dismiss an employee for leaving a spider skin and snakeskin in a phobic colleague’s pigeon-hole!
Key takeaways
- Workplaces are full of human beings. Banter is an important form of social interaction for many of us. A zero-tolerance policy, quite frankly, is just not going to work.
- Have robust bullying & harassment and equality & diversity policies in place.
- Undertake a cultural audit to understand where ‘banter’ might be straying into risky territory in your workplace – include anonymous surveys to assist with this.
- Be seen to take action where ‘banter’ is inappropriate or unwanted.
- Educate the workforce (and managers in particular) on appropriate workplace language and behaviour.
- Encourage employees to consider whether the recipient of a joke would genuinely find it funny and agreeable. Cultivate an environment where employees feel comfortable expressing their boundaries to minimise the risk of unintentional offence.
As April Fool’s Day reminds us, humour is an integral part of work culture. But in the modern workplace, ensuring that ‘banter’ remains truly friendly and inclusive is no joke.