What is acceptable ‘banter’ in the workplace (including the office Christmas party) and when does it cross the line?

• Blog

The festive office party season is here and there is no doubting that a number of employees and employers are feeling concerned about what might be said or done at these events.

What one employee may think to be a clever remark or funny joke, another might find inappropriate and offensive.

The definition of ‘banter’ is the term used to describe playful, joking and mocking behaviour between individuals/employees. Banter is often the initial defence raised by an employee who has been accused of discriminatory behaviour, but banter is not a defence in law and the remarks could be unlawful discrimination.

Discrimination, in simple terms, is when a person is treated unfairly, because they possess certain characteristics. The unfair treatment could be in the form of direct or indirect discrimination, or by subjecting another to harassment or victimisation. The characteristics protected by the Equality Act 2010, which are referred to as ‘protected characteristics’, are:

• Age
• Disability
• Race
• Religion and philosophical belief
• Sex
• Sexual orientation
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity

Does this mean that banter should be completely prohibited in the work place or at the staff Christmas party? In short the answer is no, but there are caveats.

The tribunal considers each case on its own merits and will take into consideration factors such as office culture and the individual’s own behaviour. For example, in the recent case of Evans v Xactly Corporation Ltd the employee bringing the claim had been called names such as “fat Yoda”, “Gimli” and “fat ginger pikey” by his colleagues. The employee therefore claimed that he had been discriminated and harassed against due to his protected characteristics of disability (type 1 diabetes) and his race (having ties with the travelling community).  However, the tribunal found that the employee had not been discriminated against because of the office culture and the fact that the employee himself had often participated in name calling and regularly referred to one of his colleagues as “fat paddy”.

For the employee to be successful in his claim for harassment under the Equality Act, he was required to prove that his colleagues engaged in unwanted conduct relating to a relevant protected characteristic, and the conduct had the purpose or effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. However, as the employee had reciprocated in the name calling, the tribunal found that the employee was not able to prove that he was subjected to unwanted conduct.

The legal status of an employer

As mentioned above, office banter could result in a discrimination claim being made by one employee against another employee (often in the form of harassment claims). What an employer might not realise, is that they could find themselves vicariously liable for an employee’s actions “provided it was carried out in the course of employment,” regardless of whether the employer knew or approved of it.

Note that “in the course of employment” can include an employee’s acts committed out of work hours and away from the place of work so long it has a connection with the employer, such as a Christmas party organised by the employer.

However, an employer will have a defence if it can show that it took such reasonable steps to prevent unlawful discrimination in the workplace. Evidence can include actively implementing their policies and providing staff with relevant training such as discrimination awareness.

What employers can do

In order to reduce the chance of being found vicariously liable in a discrimination claim, there are several preventative steps that employers can take, for example:

• Ensuring that they have the relevant policies in place, such as discipline, communication and equal opportunity policies
• Enforcing such policies
• Providing staff with training in regards to expected behaviours within the office and awareness of discrimination
• Deal with any complaints raised by an employee promptly and thoroughly, in accordance with internal disciplinary and grievance procedures. (ACAS provides free guidance on disciplinary and grievance procedures.)

Although there is no definitive answer on whether office banter should be strictly prohibited, it is crucial that employers determine the fine line between funny and hurtful actions, and that they take this into consideration when attempting to balance a relaxed and happy work place environment with a professional and respectful one. It is always better to err on the side of caution than be subjected to a discrimination claim.

If you are an employer facing a discrimination claim then you need professional advice as early as possible. Contact GA’s employment team by calling 01752 203500 or email me directly via robert.zacal@GAsolicitors.com.

Rob Zacal, employment solicitor