When does workplace banter become unacceptable behaviour?

This issue has been the subject of much debate in recent days following the very public sacking of Andy Gray by Sky television.

Many people view office or workplace banter as a bit of fun which is good for morale. However, banter can easily cross the line and become unacceptable harassment. In that case the employer is obliged to deal with the matter as a disciplinary issue. Read my Q&A for more details.

What’s the legal position?

Employees who have been the subject of ‘banter’ from colleagues or superiors may complain about it, before going on to indicate this is because the individual just doesn’t like him/her or, that they have never got on, perhaps due to a clash of personalities.  In those circumstances the individual will have no legal claim.

However, if the employee is able to point to workplace banter which is linked to his or her sex, race, age, disability, sexual orientation or religious/belief, the employer will have a problem.

What legislation does this fall under?

The Equality Act 2010 prohibits harassment on the grounds of race, sex, disability, age, sexual orientation and religion/belief. The legal definition of harassment is: “Unwanted conduct that violates a person’s dignity or creates an intimidating hostile, degrading, humiliating or offensive environment”. Essentially, the legislation provides a means for the employee to bring formal tribunal complaints arising out of harassment.

What about breach of contract?

In every employment contract there is a mutual (unwritten) obligation on both employer and employee to maintain trust and confidence. A failure by an employer to deal with an incident of harassment may give rise to a breach of the implied contractual duty to maintain trust and confidence. If that is the case, the employee victim may resign and then pursue a claim for constructive dismissal (and harassment) in the employment tribunal.

What’s my liability as the employer?

Most alarmingly, the employer will be held liable where an employee harasses a fellow employee on one of the grounds mentioned above. This liability attaches to the employer even where he knows nothing of it. Although it depends on whether the harassment took place during the course of the harasser’s employment, the employer may even be held liable for harassment which takes place off the employer’s premises.

To defend a claim for harassment it is of key importance for the employer to be able to argue that, even if the harassment took place during the course of the harasser’s employment, the employer took all reasonable steps to prevent the harasser doing it. Whether liability should be imposed is essentially a question of fact for the employment tribunal hearing the case.

What should I do to reduce the prospect of claims by employees?

There are a number of things you can do:

1. Ensure your existing conduct rules, grievance policy and equal opportunities policy are in date, that they have been issued to your employees and they have had the opportunity to absorb their contents.

2. Introduce compulsory regular training programmes in these areas and retain clear records of who attended.

3. If your business later faces a claim arising out of bullying or harassment, your training records will ensure you can show that employees have received adequate training in these areas and that you have taken all reasonable steps to teach your employees about what is acceptable behaviour.  This will provide some scope to argue the business should not be held liable for the acts of the perpetrator who alone should be held responsible for his acts.

5. Provide training for your managers and stress they must be alert to the substantial risks posed to your business.

6. Act promptly to rigorously investigate incidents of harassment and discipline offenders. Take legal advice at an early stage to minimise the risk of successful claims by the victim or the offender (where disciplinary action is taken).

If you would like to discuss this or any other employment law matters, please contact our Employment team on 01772 258321.