Workplace ‘banter’ tribunals surge by 45%

UK employment tribunals that concern workplace ‘banter’ have increased, new data has found.

In fact, these have risen by 45% in the last year, according to law firm GQ Littler, who discovered that the term is increasingly used in tribunals as a justification for discriminatory remarks or harassment.

Research from the firm shared that the number of cases in which workplace banter had been cited increased from 67 in 2020 to 97 in 2021.

However, despite this rise, what’s considered banter is a question that is often posed, as what one worker may believe is a light-hearted joke, another may take offence and consider it discriminatory.

Under the Equality Act 2010, unlawful harassment takes place where a person engages in unwanted conduct related to a protected characteristic such as age, nationality, race or sex.

This incident would have the purpose or effect of (i)violating their dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

GQ Littler outlined some cases where employers have unsuccessfully tried to plead that bullying or harassment was simply ‘banter’:

1. An employee of Indian origin who was called a “cheeky monkey”, during a business-related round of golf.
2. An employee who was teased that if he didn’t like football he must be “gay then”.
3. An employee called “half-dead Dave” due to his age.
4. An employee who was called “menopausal” or a “dinosaur” due to her age and sex.

With this in mind, if incidents like this occurr in the workplace, organisations could be found viciously liable for any offensive comments made, even if they fall outside of official working hours.

But the law firm pointed out that employers can use ‘banter’ as a justification to help them argue:

1. That the conduct wasn’t unwanted i.e. if the employee also engaged in similar behaviour and jokes.
2. That the behaviour was not connected to a protected characteristic.
3. That the conduct didn’t violate their dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for them. Basically, that either the employee wasn’t offended by the conduct, or it wasn’t reasonable for them to have been offended.

Commenting on this trend, Lisa Rix, senior associate at GQ Littler, noted that employees should be wary of jokes that could be deemed offensive, in particular when it comes to a protected characteristic.

“People should think about how that joke would sound being repeated back to them and whether they would feel uncomfortable trying to justify the comments if questioned about them. If that would feel awkward or embarrassing, best not to say it in the first place,” she explained.

“But this doesn’t mean the end of workplace fun: it is possible to make jokes which don’t constitute harassment.”

Read the latest issue of Reward Strategy magazine for the latest employment law trends.