Bullying & discrimination; just ‘banter’?

Recent research has found that the number of employment tribunals claims relating to ‘banter’ in the workplace saw a 45% increase, from 67 in 2020 to 97 in 2021.

What one employee might claim is “banter” or simply harmless workplace humour might actually be bullying or harassment, particularly if someone is subjected to discriminatory jokes on the basis of race, gender, nationality or sexual identity.

There are many cases in which employers have unsuccessfully tried to plead that bullying or harassment was merely “banter”. Some examples are:

• An employee who was teased that if he didn’t like football he must be “gay then”.
• An employee called “half-dead Dave” due to his age.

Under the Equality Act 2010, unlawful harassment occurs where a person engages in unwanted conduct related to a relevant protected characteristic, and this has the purpose or effect of – (i) violating their dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

It is worth noting that the individual bringing the complaint does not need to have the ‘protected characteristic’ relevant to the conduct in order to be offended. For example, if you are wrongly assumed to have a certain characteristic, you can be harassed on that ground: such as a turban-wearing Sikh man subjected to Islamaphobic “banter”. He could be harassed on religious grounds despite the wrong assumption having been made that he was a Muslim.

Employers can be found to be vicariously liable for any discriminatory comments made by employees provided these were made “in the course of employment”, even if this falls outside of working hours.

The research suggests that the overall, long-term increase in cases may be due to employees communicating with one another more through informal instant messaging services such as WhatsApp. Messages or memes are often amusing to one person but can be offensive to others and the nuances of tone are often lost in written communication.

Employers should keep an eye on their workplace culture to make sure it is professional and appropriate. Up to date training, relevant to communicating in a modern-day workplace should also be provided to employees regularly to ensure all workers know what is and what is not appropriate workplace behaviour.

Humour in the workplace is important –However, employees should be wary of making jokes that stray into offensive territory, especially those which relate to protected characteristics.

If you have any concerns about this subject contact us at enquiries@121hrsolutions.co.ukand we can discuss.