Banter or Bullying?

“There has obviously from time to time been some banter, but as far as I’m concerned that’s never been offensive”. These are the words of Sir Phillip Green in relation to the allegations of sexual harassment and racial abuse made against him by former employees of Arcadia Group.

But what is “banter” and when does it cross the line into bullying?

For many, workplace “banter” is part of day to day working life and can have a positive impact on businesses and teams within it.

A lot of people have the view that “banter” at work is acceptable, normal and a “good laugh”, a way to boost the team morale. It’s just a joke between colleagues, right? But often, there is a fine line between “banter” and bullying, and workplace “banter” has the potential to create a hostile and intimidating environment for individuals. Getting the “banter” balance right is difficult though and it can cause employers more than a bit of a headache.

The Law

Employees can bring claims of discrimination and harassment against their employer if they feel that “banter” at work crosses the line and relates to a “protected characteristic” such as race, sex or disability. These claims can be bought by employees who have been subject to “banter” themselves, or merely overheard “banter” which they believe is unacceptable. The latter is a bigger risk in large, open plan offices or businesses where conversations can be heard more clearly and where there are more people who could potentially be affected by the conduct of others.

If an employee is successful in their claim, the potential result is a large compensatory payment and reputational damage for the employer.

So, what does this mean for employers?

The key point for employers is that the effect of offensive “banter” is assessed subjectively from the point of view of the person who is complaining about it. Sir Philip Green’s comment that “…as far as I’m concerned that’s never been offensive” is therefore a typical mistake that many employers make, forgetting or not realising that the key issue is how others take the “banter”, not whether the perpetrator thinks it was just a joke or inoffensive.

Employers need to remember that just because one person thinks a comment is funny and intended as a joke, doesn’t mean everyone does or will. It also doesn’t necessarily matter if employees have previously engaged in “banter” or a joke and said they found it funny since many people may simply join in, or try to ignore it, to avoid creating a bigger issue for themselves. Subsequent comments or acts of “banter” may therefore be perceived differently and considered discriminatory or as harassment.

Employers can also be held liable for the acts of its employees, meaning that an offended employee can sue their employer even if the employer was not directly involved in the actions of one of their employees.

It’s all fun and games, they can “take it” …

It’s irrelevant if an employer can show that another employee would have found the same situation or remark funny, or in fact whether it is thought that an employee is “head strong” or “thick skinned” and can “take it”. Equally, with any particularly vulnerable employees who would suffer more than others as a result of “banter”, the employer is still liable for the full extent of the effects of the “banter” on the employee, whether it is considered to be beyond the expected or not.

Again, the key point is that it is all about the employee and how they are affected by the behaviour.

As an employer, what can I do?

Don’t worry… you don’t have to ban banter…

However, it is recommended that you have very clear anti-harassment and equal opportunities policies in place, and communicate these clearly, and regularly, to all employees. Tell them where the policies are, how to access them and provide regular training about what is and isn’t acceptable in the workplace.

These types of steps can help an employer demonstrate it takes the dignity of its employees seriously and may even prevent an employer from being held liable for the actions of an offensive employee who, because of their training and the attitude of their employer, knew perfectly well that their actions were unacceptable.

For more information about banter in the workplace, and how we can help you, please contact our employment team on 0161 926 9969 or by email and they’ll be happy to assist you.