Is your workplace ‘banter’ at risk of turning into allegations of discrimination, harassment, unfair treatment and victimisation?
With multi-layered nuance and infinite differing viewpoints, freedom of speech is a hot topic, with the right to express an opinion, and how best to do that, fiercely defended and debated.
In the midst of this avalanche of opinions are our relationships at work; individual narratives within a regulatory framework of business drivers, organisational structures, contractual arrangements, legislative requirements, colleagues, managers, supervisors, leaders. In the mix also, are our individual attitudes, viewpoints, values and professional characteristics, all of which impact on the texture of our workplace relationships.
Good working relationships and successful collaborative working are likely to feature a degree of ‘banter’, an easy rapport helping to create a healthy, high performing working environment. When ‘banter’ goes wrong, however, it carries the risk of turning into potentially devastating allegations of discrimination, harassment, unfairness and victimisation.
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.
Minto v Wernick Even Hire Ltd
(Sex discrimination / harassment / constructive dismissal)
There was no evidence before the Tribunal that other members of staff were insulted in respect of their personal attributes or characteristics in a similar way. The passages referring to Mr S in the same aide memoire are strongly critical of his work and behaviour to some extent but contain no insulting personal term nor equivalent slur.
Bivonas LLP & Ors v Bennett UKEAT / 0254 / 11 / JOJ
(Sexual orientation discrimination)
However, the specific remarks on 5th January about it being difficult for the Claimant “because he was not 25 anymore” were accepted as discriminatory. The basis for this was that the remarks were at least in part made because of his age – they would not have been said to him had he in fact been appreciably younger than he was.”
Clements v Lloyds Banking Plc & Ors
The above extracts from Employment Tribunal Judgements show the potential dangers of ‘banter’ at work, and how what was viewed as ‘banter’ by some, was found, in law, to be discrimination and harassment.
Ensuring workers have a common understanding of what is acceptable ‘banter’ in your workplace is a key element in reducing the risk of allegations of discrimination, harassment and unfair treatment and raising awareness on this topic is crucial. For example,
- Are you confident your managers are clear of the distinction between ‘banter’ and abusive behaviour with subordinates?
- Is what you perceive as ‘banter’ in your workplace at risk of being classified as discrimination by an Employment Tribunal?