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Office banter: where to draw the line?

Introduction

In August 2016, the Trades Union Congress (TUC) published a report on sexual harassment entitled ‘Still just a bit of banter?’. The report found that 30% of the women polled had been subjected to unwelcome jokes of a sexual nature, and 35% of the women polled had heard comments of a sexual nature being made about other women in the workplace.

Banter or harassment?

The TUC report illustrates that, despite laws prohibiting bullying and harassment, many employees still find that workplace banter often crosses the line from humour to offence. Let’s explore the office banter minefield and look at some practical tips that will help employers ensure their staff stay on the right side of the line.

The working day can be long and dreary. It’s no surprise, then, that employees often use jokes to pass the time with their co-workers. Amusing exchanges between colleagues can build working relationships and strengthen teams. However, if comments cause offence or distress, then what started as banter may have developed into something more sinister.

Harassment occurs when an individual engages in behaviour that has the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. The unwanted conduct must relate to a protected characteristic, such as race, age, disability, religion, sex, or sexual orientation. Where the harassment is of a sexual nature, then the individual can complain of sexual harassment.

The perception of the victim is a critical factor. If an employee considers that another person’s conduct has the effect of violating their dignity, and such a belief is reasonable, then it does not matter that the perpetrator did not intend for their conduct to have that effect. The headache for employers trying to distinguish banter from harassment is that the victim need not have made the perpetrator aware that the conduct was unwanted. This can make it difficult to detect when banter has gone too far.

The main risk for employers is that they can be held vicariously liable (when an employer is held liable for an employee’s unlawful or reckless actions if they were committed in the course of their employment) for a complaint of harassment. A successful harassment claim in the Employment Tribunal may result in an award running to thousands of pounds, not to mention the reputational damage and internal impacts that can have devastating impacts on both management time and wider employee engagement.

Recent cases on office banter

Participation in banter

The fact that an employee has engaged in banter does not mean that there are no boundaries to the kind of language that is appropriate for their work colleagues to use. There is always a line beyond which banter will become unlawful abuse.

In Smith v Ideal Shopping Direct Ltd UKEAT/0590/12, Mr Smith complained about being referred to as ‘Big Gay Wayne’ despite evidence he had often used the phrase about himself. The Employment Appeal Tribunal (EAT) considered whether the fact that Mr Smith was openly gay and had promoted his sexuality meant that comments about his sexual orientation could not amount to harassment. If that approach were permitted, then it would mean any remarks about Mr Smith’s sexuality would be acceptable. The EAT held that references to Mr Smith’s sexual orientation that were abusive were not tolerable on any reasonable view. They therefore amounted to sexual orientation harassment.

False perception

There have been cases where an employee has been subjected to homophobic abuse despite not being gay. This will not prevent a ruling that the employee suffered sexual orientation discrimination.

In English v Thomas Sanderson Blinds [2008] EWCA Civ 1421, Mr English complained of being subjected to sexual innuendo by his colleagues to the effect that he was homosexual, despite his colleagues knowing he was happily married with children. He was called ‘faggot’ and lurid comments were made about him in the house magazine. His colleagues’ actions were based on Mr English having attended boarding school and living in Brighton, which the Court of Appeal viewed as a ‘fanciful basis on which to form any remotely objective opinion of a person’s sexual orientation’. The Court of Appeal held that Mr English had been subjected to sexual orientation harassment even though he was not gay and his colleagues knew that fact.

Cyber-bullying

Emails, text messages and social media are increasingly being used as means of engaging in banter. Employees may exchange messages between each other in which they ridicule their colleagues. In such cases, the employer’s IT and communications policy will be a vital tool when it comes to disciplining the employee, particularly if it makes it clear that activities outside of the workplace are not above scrutiny.

In Otomewo v Carphone Warehouse Ltd ET2330554/2011, two Carphone Warehouse employees updated Mr Otomewo’s Facebook status to read ‘Finally came out of the closet. I am gay and proud’. The update was posted during working hours. Mr Otomewo was embarrassed by the post, which he regarded as an unnecessary and unwarranted intrusion into his private life on a public platform. The Employment Tribunal found his colleagues’ actions amounted to sexual orientation harassment, and Carphone Warehouse was vicariously liable.

Culture of banter

Going somewhat against the trend illustrated by the above cases is the recent case of Evans v Xactly Corporation Ltd UKEATPA/0128/18. In this case, the claimant’s complaints failed to succeed at the Employment Tribunal because it was held that banter was an integral part of the workplace.

Mr Evans suffered from type 1 diabetes. He was sacked by Xactly for poor performance after working as a sales representative for less than a year. He brought claims of race and disability discrimination stemming from occasions on which his colleagues had called him a ‘salad dodger’, ‘fat Yoda’, and ‘fat ginger pikey’. The EAT upheld the Tribunal’s finding that, although the comments aimed at Mr Evans had been ‘derogatory, demeaning, unpleasant, and potentially discriminatory’, his office culture was one in which ‘indiscriminately inappropriate’ banter was commonplace. Mr Evans had also dished out similar inappropriate remarks to his colleagues and appeared comfortable with the office culture and environment. Against that background, and taking into account the overall relationship and behaviour of Mr Evans with his colleagues, the EAT found that there had not been any harassment. The comments complained of were not unwanted nor had Mr Evans’ dignity been violated.

Minimising risk – practical steps to take

Employers should not view the decision in Evans and Xactly Corporation with relief and think that, provided they can show a culture of boisterous workplace banter, they will be safe from any harassment claims. It is unlikely that most work environments will match that in Evans nor will the claimant always be such an enthusiastic participant in the high jinks.

It would be far more prudent for an employer to put in place measures aimed at preventing such a culture arising in the first place, as well as procedures for dealing with any unwanted conduct. Done properly, such measures can form a ‘reasonable steps’ defence preventing an employer from being found vicariously liable for the discriminatory acts of its employees.

Practical steps to take include:

  • having clear policies prohibiting harassment and bullying, and ensuring all staff are aware of them;
  • training staff in equality and diversity issues;
  • educating line managers on recognising potential issues and taking action before problems arise;
  • encouraging staff to report any acts of harassment; and
  • taking action on each complaint of bullying or harassment received, including those involving social media.

LexLeyton are specialists in issues of harassment and can provide training on this area specific to clients’ needs. Please contact us at legal@lexleyton.co.uk if you would like to discuss this area in more detail or are interested in discussing your training needs.

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