The dangers of banter in the workplace

Employers often use ‘workplace banter’ as a defence to claims of harassment under section 26 Equality Act 2010.

Under section 26 of the Equality Act, a person harasses another if they engage in unwanted conduct related to a protected characteristic (or which is of a sexual nature) which has the purpose or effect violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. In that particular context, employers can argue that the conduct that is being complained about is harmless, jovial, consensual and/or fun.

When assessing whether the conduct of complained of constitutes harassment under the Equality Act, the Employment Tribunal will consider the claimant’s views on the conduct, together with the other relevant circumstances surrounding the conduct including whether it is reasonable for the claimant to have found the conduct offensive in light of the wider context of the overall culture of that particular workplace.

The ‘banter’ defence was used successfully in Evans -v- Xactly Corporation Ltd. Here, Mr Evans brought a claim for harassment related to his disability and race after comments were made about him being a “fat ginger pikey”.

The Employment Tribunal found that there was a wider culture of office banter which included teasing, that Mr Evans himself had engaged in this behaviour, referring to colleagues as “fat paddies” and that subsequently, the comments about Mr Evans could not reasonably have been said to have the effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

In contrast, there are numerous case law examples where the workplace banter defence has been unsuccessful. For example, in the case of Austin -v- Samuel Grant (North East) Ltd the Employment Tribunal found that Mr Austin had been harassed on the grounds of his sexual orientation when his colleagues referred to him as “homosexual” and “gay” because he had told them that he did not like football.

Similarly, in the case of Robson -v- Clarke’s Mechanical Ltd the employer tried to argue that calling somebody “half-dead Dave” because of his age was banter, which the Employment Tribunal were unimpressed with.

The cases above illustrate the danger of using banter as a defence to claims under the Equality Act in the workplace. This is important as employers can be vicariously liable for the actions of their employees.

The success of the ‘banter defence’ turns on the facts of each case and employers should take steps to ensure they are appropriately protected against claims under the Equality Act.

This may include:

1. Ensuring all staff are aware of the standards expected of them;
2. Having robust policies on equality & diversity, anti-harassment and bullying;
3. Ensuring that policies are kept up to date and that staff are fully aware of them (for example, by providing regular training sessions on them);
4. Taking appropriate action if they become aware, whether informally or through formal grievances, of potential examples of discriminatory behaviour.