Fine line Between Banter & Harassment | Davis Blank Furniss

Shiva Shadi – Head of Employment – discusses what to consider when it comes to ‘banter’ in the workplace.

What is acceptable banter in the workplace?

There is no doubt that banter in the workplace can be positive. In most cases, it is a sign of a good working relationship and comradery where employees have worked together long enough to have formed and built up friendships that allows them to engage in playful or teasing banter between each other.

It can also keep up morale in what could otherwise be, for example, a stressful work environment or the monotony of repetitive work.  In some cultures, teasing insults are considered a form of close friendship and a sign of affection. That’s fine if it is within the bounds of good-natured ribbing and humorous comments, but once it strays beyond that it should ring alarm bells for employers.

What is considered bullying and harassment at work?

Once banter escalates it can be sufficient to amount to bullying.  It can then also transcend into harassment where it relates to one or more of the following protected characteristics of any particular employee or someone they have a close association with:

  • Age
  • Disability
  • Gender reassignment
  • Race
  • Religion or Belief
  • Sex
  • Sexual orientation

This can include situations where the harasser perceives their colleague possesses a particular protected characteristic which, in reality, is not correct. An example, which is often cited, is an individual who suffers anti-homosexual taunting but is not a homosexual and the perpetrators know that he or she is not when they commit the relevant acts of harassment.

Employers, however, should be aware that even if the banter relates to a protected characteristic, it must be unwanted conduct as well as have the purpose or effect of violating an employee’s dignity or create an environment that is intimidating, hostile, degrading, humiliating or offensive to the employee.

The above requirements are important in order to prevent trivial acts causing minor upset, falling into the net of serious concept of harassment.

Employers should also be mindful that what one employee considers a violation of their dignity another may not even register it.

Tribunals take into account the following:

  • The perception of the victim;
  • The circumstances of the case; and
  • Whether it is reasonable for the conduct to have had that effect on the individual.

Employers must therefore look into the context in which comments are made.

So, if the culture within the workplace is where teasing and verbal sparring are the norm and the complainer engages in it themselves on a regular basis by being an active participant, it could result in them struggling to satisfy a Tribunal that they had actually been subjected to harassment in accordance with the statutory test.

A continuing area of significant growth in terms of claims are those relating to harassment of a sexual nature, which includes inappropriate physical contact, sexually suggestive remarks and sexually indecent acts in the workplace.

Regardless of an employer’s own view of whether a complaint constitutes banter or something more all complaints or concerns raised by employees should be addressed and investigated without delay.

Steps by employers to prevent bullying and harassment in the workplace

Employers will be held vicariously liable for bullying and harassment of their employees. Employees can also bring claims of harassment against individuals within an organisation.  Therefore, it is critical that steps are taken so far as possible to not only protect the organisation but their employees falling victim to such conduct.

Examples of steps that can be taken are:

  • Ensure there is an effective Ant-Harassment Policy in place.  This should be brought to the attention of all employees and recirculated at least once a year as a reminder.
  • Management should not only have an ‘open door’ policy to enable individuals to feel comfortable to raise concerns, but they should also have an ear to the door and be ready to step in where necessary or have a quiet word with employees that may be crossing the line towards bullying and harassment.
  • Ensuring staff and managers have training in terms of harassment and bullying in the workplace and steps they can take if they are on the receiving end or witness any bullying or harassment.
  • Organisations should also set an example by acting immediately and investigating thoroughly when a complaint of harassment is made and be considerate in the manner in which they deal with the individuals concerned.
  • Be mindful that even if the conduct complained of does not satisfy the legal requirements of harassment, the individual has clearly been upset by a course of conduct which led them to rise it as an issue. Steps should still be taken to resolve the concerns of the individual.
  • Where it is a misunderstanding, trying to resolve the issue as quickly as possible will save working relationships and office morale.

Shiva Shadi is Head of Employment at Davis Blank Furniss. Please click here for her profile and contact details.

Get help from our employment law solicitors

If banter or harassment is becoming a problem in the workplace, get in touch with the Employment Law Solicitors at Davis Blank Furniss. We can help you to resolve any employment issues quickly and cost-effectively before they escalate.

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