Should Employers Bin Banter?

If this was suggested to you by a colleague, you may feel it sounds a little heavy-handed for your small and friendly business. However, be aware that it can be something that is discreet and underlying. Even if you feel your working environment is totally innocent in this respect, it’s worth being vigilant to ensure it doesn’t ever creep in.

Banter and The Law

Discrimination lawyers know there’s a fine line between so-called ‘harmless banter’ and unlawful harassment.

The legal definition of harassment under the Equality Act 2010, is “unwanted conduct which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”.

The words, purpose or effect mean that, “it was just banter”, will not wash with an employment tribunal judge; it is no defence to say that offence was unintended. What matters is the reasonable perception of the victim.

Banter In The Workplace

In the context of discrimination, harassment can involve conduct of a sexual nature (sexual harassment), or related to one or more of the protected characteristics: age, race, disability, sexual orientation, sex, gender reassignment, religion or belief.

It doesn’t even have to be directed at the person complaining about it. A woman may complain of harassment if she overhears comments of a sexual nature made against another woman and for her, this creates an offensive or hostile work environment.

Harassment can be a one-off event; the Equality Act doesn’t need the victim to show a course of conduct. The fact that the victim put up with the conduct for some time, or even appeared to join in doesn’t necessarily mean that the conduct is not unwanted.

The Consequences

The harasser and their employer face the prospect of litigation from acts of harassment which take place in the course of employment. Tribunal litigation is typically risky, time-consuming and expensive. Even if these claims don’t reach the tribunal, allegations of discrimination alone can be enormously damaging to the individuals concerned, to staff morale, productivity and the wider reputation of a business.

Can It Ever Be Seen As Harmless?

A report in 2016 by the TUC revealed that out of the 1500 respondents taking part in the TUC survey:

· More than half (52%) said they had suffered some form of sexual harassment in the workplace

· 79% said they didn’t report the harassment, with some saying they feared being seen as “unable to take a joke” if they challenged or reported it. Others reported being fearful of their career prospects (15%) or felt they would not be believed (24%).

· Of the minority who did report the unwanted behaviour, very few saw a positive outcome; in many cases, management played down the harassment, in others (16%) they were treated worse as a result.

· Over a third said they had overheard comments of a sexual nature made about other women in the workplace.

· It also revealed that sexual harassment is more prevalent against younger women and those in the more precarious forms of work – agency and zero hours’ workers.

How Can Employers Take Preventative Action?

Training employees on equality and diversity is crucial. The more staff understand the issues then the more your business is protected. At Cluer HR we offer an Equality and Diversity Course which will ensure your staff are up to date on issues in the workplace. Read more about it here or call us on 01386 751 740 or email us at [email protected]

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