December 3, 2022

With workplace lawsuits on the rise – and so often involving banter based upon protected characteristics such as race, nationality, age or sex – the question of what constitutes friendly teasing vs harmful bullying is increasingly becoming an issue.

What is the difference between workplace banter and discrimination? How can you as a small business owner-manager educate employees on where to draw the line? How can you protect staff from hurtful comments which are made in the name of workplace banter, and – if it does occur – how should you appropriately deal with the situation so it doesn’t have to go to court?

>See also: The right to return to work after maternity leave

What is the difference between workplace banter and discrimination?

Jokes and banter can be more commonplace in some workplaces than others. “Banter” is colloquially understood as light-hearted remarks or good-humoured teasing. While this can be a sign of a happy and relaxed workforce, such behaviour can amount to discrimination or harassment, particularly if it is at someone else’s expense.

The Equality Act 2010 contains provisions that protect individuals from discrimination on the grounds of a “protected characteristic”. These includes age, disability, gender reassignment, marriage/civil partnership, race, religion or belief, sex, and sexual orientation.

The act safeguards individuals from being treated less favourably by somebody because of their protected characteristic. The act also prohibits harassment. This is defined as behaviour related to a protected characteristic that has the effect of violating someone’s dignity or creating an intimidating, degrading, hostile, offensive or humiliating environment.

Determining where the boundaries lie between banter and discrimination is often judged on a case-by-case basis. Whether something is banter or discrimination can turn on what was said, by who, to whom, the subject matter, and the impact on the individual. Whether or not banter was innocent and not intended to cause offence is irrelevant – it is the effect on the individual that matters most.

>See also: How to deal with sexual harassment in your small business

How should employers educate their staff on where to draw the line?

Employers have a responsibility to prevent bullying and harassment in the workplace.

Mandatory respectful workplace training should be given to all staff regardless of role or seniority. In addition, regular refresher sessions (at least every two years) should be delivered – relying on stale training is not sufficient.

Additional support and training should be provided to managers to help them spot inappropriate workplace behaviour and make sure it is resolved at an early stage. Very often, if poor behaviour is identified and dealt with quickly, it can avoid issues escalating which can be very damaging to workplace morale – especially within a team environment.

Fostering a respectful workplace culture is essential. Celebrate diversity – often the most successful and productive companies are those that are most diverse. So give staff the tools and confidence to be able to speak out if they witness poor behaviours rather than being too afraid (perhaps for fear of retaliation from other team members) which inadvertently can make them complicit.   

Having a good set of policies and/or staff handbook, which all staff are familiar with, will help to ensure everyone is aware of how to behave at work.

How can employers protect staff from hurtful comments which are made in the name of workplace banter?

Employers who provide training and have clear policies on maintaining a respectful workplace have already put measures in place to protect employees. Staff should be aware of the standards of behaviour that is expected of them.

When a situation arises where banter has gone too far and has caused upset, the issue can hopefully be resolved informally. Situations like this are where management training is vital to mediate and ensure all parties involved understand why the behaviour was inappropriate or hurtful and why it should not happen in future. It may be a case of reminding the perpetrator of their training and the relevant company policies and issuing an apology to the affected employee.

For more serious situations where the banter is discriminatory or potentially discriminatory, or has caused severe upset, it will be appropriate to deal with the issue formally in accordance with the relevant company procedures such as the disciplinary policy.

If workplace banter crosses the line, how should it be dealt with, so it doesn’t go to court?

If not settled informally, or the banter is severe enough to trigger a company policy response, it will be necessary to follow the company’s disciplinary policy.

Every employee has the right to bring employment tribunal proceedings if they wish and it is not appropriate for an employer to seek to prevent their employee from doing so. 

An affected employee may raise a grievance in accordance with their employer’s grievance policy. Their employer must then act promptly without unreasonable delay to investigate the grievance through the appropriate measures. It is important to ensure the employee is updated on the process and likely date of conclusion of the investigation.

Following such investigation, the employer will need to consider appropriate action depending on the circumstances. The employer only need do what is reasonable, but should carefully and sensitively explain their decision to the employee. The recommendations arising from a grievance investigation will be fundamental to determining whether or not it is possible to repair a damaged working relationship between the affected parties.

If the banter is found to have taken place and amounts to misconduct or gross misconduct, the employer should instigate disciplinary proceedings against the perpetrator.

Daniella McGuigan is a partner at employment law firm Ogletree Deakins

Further reading

Small business HR – everything you need to know

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