I was only joking… Hitting the right note when it comes to banter
A ‘term of endearment’ suggests affection, but such expressions may result in individuals feeling harassed or discriminated against.
And that’s important to consider when you see how workplace banter is driving a surge in claims against employers: analysis identified a 45 per cent rise in such claims between 2020 and 2021.
These claims are under the Equality Act 2010 which protects people from discrimination, harassment and victimisation related to one of several protected characteristics. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
For banter to be unlawful, its purpose or effect must violate a person’s dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment.
This is where employers need to be taking temperature checks on the underlying culture if they wish to avoid problems arising. Employees might think it’s all just part of a jokey environment, but their comments may constitute bullying or harassment if someone is subjected to discriminatory jokes, and this can be hot territory when it comes to age, gender, sexual identity, race and nationality.
Examples from recent claims demonstrate this, first of all in relation to age, whether young or old. One 69-year-old plumber was known as ‘half-dead Dave’ by colleagues and won £25,000 in damages for age-related discrimination. A similar award was made to a woman whose boss humiliated her in front of colleagues and customers by calling her a ‘dinosaur’ because she was going through the menopause.
At the other end of the age banter scale, Frances Fricker, a woman in her 30s, won her claim of sexual harassment after her boss referred to her as ‘good girl’, even after she objected, and harassed her to change her profile images on social media saying she looked fat. As the tribunal judge said: “Some phrases, whilst not regarded as taboo, are generally regarded as inappropriate in the workplace. Referring to a woman in her late-30s with a school-age child as a girl is demeaning.”
And, as the judge went on to say: “Language evolves over time. Words and phrases that might once have seemed harmless are now regarded as racial, homophobic and sexist slurs.”
This is reflected in a claim for racial harassment which was upheld after an employee of Indian origin was called a ‘cheeky monkey’, although the tribunal accepted this could in other circumstances have been considered innocent banter.
Outcomes such as this demonstrate how hard it can be to police colleague interactions as an employer. Comments may rely on context, and there is often a fine line between what may be considered harmless banter and what may amount to unlawful discrimination or harassment under the Equality Act.
But defending cases for unlawful discrimination and harassment is expensive and time-consuming and with no limit on the amount that can be awarded, it’s important that employers try to mitigate the risk, with appropriate policies and regular diversity and equality training for staff. A clear path for staff to raise concerns is also important, and when such concerns are raised, action must be clear and purposeful. Also to bear in mind is that it may not be the member of staff who complains, but a colleague who is unwilling to stand by and allow name-calling or bullying to take place.
Esther Marshall, specialist in employment law, said:
“Managing relations in the workplace can be the most difficult part of being an employer. What is a harmless joke to one can be offensive or degrading to another. Employers should consider equality and diversity training for all staff, and should deal with all allegations of bullying and harassment thoroughly and without delay. Making sure your equality and diversity policy is up to date is also key. At Mullis & Peake our specialist employment team can guide you through this rapidly changing environment.”