‘Just banter’ or discrimination and harassment…. where to draw the line?

Our trainee solicitor for Employment, Andrew Rees, discusses whether ‘banter’  is harmless fun or represents a culture of harassment and discrimination 

Some argue that banter is just a bit of fun and helps to create a good team environment. However, the reality is that behaviour excused as mere banter can cause serious offence and constitute harassment causing big problems for employers. Last year, the TUC reported that over half of women experienced sexual harassment in the workplace. This is just one statistic that demonstrates the size of the problem facing employers and the need to manage ‘banter’ and ensure employees are trained to understand where the line is before it becomes unacceptable behaviour.

The legislation which allows employees to bring claims for discrimination and harassment is the Equality Act 2010 (“the Act”). The Act defines harassment (unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment) and sets out the specific protected characteristics under which discrimination claims can be brought. They include; age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual discrimination.

The law is subjective; it is not concerned as to whether a reasonable person would have considered certain remarks offensive, it is only concerned as to whether the person to who the remarks were aimed at found them offensive. Because of its subjective nature, overstepping the mark can be easily done. It is a dangerous assumption to make, to consider that a certain individual will not take offence at ‘banter’ because he/she has a strong character. The following, many of which were claimed to be instances of banter, have all been held to constitute discrimination or harassment:

  • In Bivonas LLP and other v Bennett, a gay employee found homophobic comments regarding him within a handwritten note. The ET ruled that this amounted to direct sexual orientation discrimination.
  • In Mrozinski v Q Medical Technologies Ltd, the ET found that a suggestion made by a line manager that the claimant should dress seductively for a client meeting to secure business constituted harassment.
  • In Austin v Samuel Grant (North East) Ltd, the claim of a heterosexual male employee who was called “gay” because he didn’t like football was held to be sexual orientation and religion or belief harassment.
  • In Clements v Lloyds Banking Plc and others, a comment that an employee was “not 25 anymore” was age discriminatory.
  • In Harper v Housing 21, the claimant of Irish descent was likened to women on the television programme “My Big Fat Gypsy Wedding” which was held to be direct race discrimination and racial harassment.
  • In Furlong v BMC Software Ltd, an employee who was the subject of, amongst other things, speculation about a relationship with a colleague was successful in her claim for sex discrimination and harassment.
  • In Basi v Snows Business Forms Ltd the ET commented that even though the office environment was conducive to “healthy banter”, the claimant (who was a Sikh of Indian origin) had been harassed when he was called a “cheeky monkey” during a golf match at which business matters were discussed.

As evidenced in these cases, banter that oversteps the mark can cost an employer both financially and reputationally. It is, therefore, essential that employers have clear anti-harassment policies in place. However, simply implementing a policy which sits on the employer’s intranet or staff handbook will not be enough to demonstrate that steps have been taken to remind employees of their obligations not to discriminate against others. Employers need to actively engage employees in training and awareness to ensure that the employer’s policies are fully understood. Such sessions may well provide employees with examples of what behaviour is unacceptable and the consequences of engaging in banter that oversteps the mark. Where a culture of banter already exists, a firmer approach needs to be taken to prevent allegations of banter escalating into potential harassment.