The B Word
The B word – banter – is a word employers should dread. Good teams will thrive on a joke or two between workplace friends. However, offensive and potentially discriminatory comments can be masked as ‘banter’, indicating to the recipient that taking offence is unreasonable. A culture where banter is acceptable is likely to affect productivity and staff retention. It will also expose the employer to the risk of tribunal claims, especially harassment. Harassment is unwanted conduct related to a protected characteristic which has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile or offensive environment for the employee.
The incidence of ‘banter’ being cited in employment tribunal claims as a defence to discrimination claims has increased by 45 per cent in a year and hit a record high, the Telegraph has reported recently. Earlier this year, employment tribunals found name-calling such as ‘half-dead Dave’ (in Robson v Clarke’s Mechanical) discriminatory on the basis of age. In another case, calling someone a ‘bald c***’, in a robust industrial environment, was found to be harassment on grounds of sex (Finn v British Bung Manufacturing).
The solution is to create an appropriate workplace culture, whatever the working environment. Employers must ensure that they have robust equalities policies on which both staff and managers are trained and regularly refreshed. Day to day line management must call ‘banter’ out, however reciprocal it may seem. Employees must be assured that complaints will be taken seriously. Banter might seem funny, but it’s anything but if it lands the employer in the employment tribunal.
Adrian Fryer, Partner & Head of Employment
t: 0151 224 0539