In our last two blogs, we focussed on where an employer can be vicariously liable for an assault by one employee on another and the potential employment law risks which can arise from Christmas gatherings. Today we bring you the last of our “3 Wise Men” blogs on matters to be conscious of during the festive party season, where employees are likely to have a much greater degree of social interaction with one another than at other times of the year. That increased contact when “off the clock” can often result in friction, with little tensions which have been bubbling under throughout the year reaching boiling point.
If you work in any kind of environment, from an office to a building site, you’ll be familiar with the term ‘banter’. It’s that humorous back and forth we all use to make the day a little brighter, to have a joke and a laugh with our colleagues, and to generally brighten up what can be a mundane working environment. But is it ‘just bants’, or could it be something more sinister, and more harmful?
Workplace banter has its place. However, the term ‘banter’ should never be used as an excuse to humiliate, upset or abuse someone else. What may seem like ‘bants’ to one person could be deeply offensive or upsetting to someone else. Suggesting that the person who has been upset by a bit of banter should accept it as a bit of ‘light-hearted fun’ is a classic case of blame shifting in what could be a deeply intimidating and demeaning situation.
Victims of workplace banter that goes too far are often reluctant to do anything about it. This is when banter has definitely crossed that line into abuse and bullying. Anyone who feels that confronting this behaviour could be detrimental to their position, or fears repercussions, may be the victim of workplace bullying. If someone feels intimidated, berated or humiliated then that ‘having a joke’ or ‘just a bit of banter’ has stopped being funny.
The first thing to do is to generally encourage employees to talk to the person who has made the unwanted comments rationally, and explain to them why their ‘banter’ isn’t as funny or harmless as they think. If the perpetrator doesn’t take on board the complainer’s concerns then employees should be made aware that they can escalate the situation by taking it to a manager, who can then deal with matters whether informally, by way of the company’s grievance procedure or under any anti-harassment & anti-bullying policy you have in place.
The difficulty employers have is that there are a lot of ‘grey areas’ when it comes to the definition of what is reasonable or appropriate behaviour, and that includes banter. The Equality Act 2010 says that a complainant’s reaction to what is termed ‘unwanted conduct’ (which includes verbal banter) has to be reasonable. So in this instance, context is very important. For example, if an employee overhears a remark about religious beliefs that isn’t directed towards that employee, but that comment still makes them feel uncomfortable, then the comment doesn’t automatically fall into the harassment or workplace bullying category- whether it does or not will depend on the circumstances.
Employees have a right to state that the comment made them feel uncomfortable and that it’s behaviour that shouldn’t be encouraged, but whether an employer will require to act on that will entirely depend on the nature of the comment, and its context. It will also depend on the policies and procedure of the company and how they define workplace bullying.
What employers can do is ensure that equality and diversity awareness training is implemented, and that everyone understands what constitutes acceptable behaviour within the confines of the workplace. That includes stopping ‘banter’ that attains to things such as a person’s appearance, religious beliefs, sexuality or any other personal issue.
Banter can very easily turn into bullying, especially if it’s relentlessly targeted at an individual. Once others join in, this mob bullying can become not only deeply upsetting but frightening and intensely intimidating. If that is the case then what may have started out as a bit of banter has most definitely crossed the line. In this case, the victim has the right to go to a senior manager, their union representative or HR department and register a complaint or grievance.
In extreme cases where an employer has failed to respond to this level of bullying, there is the risk of an employee raising proceedings at the Employment Tribunal, whether under the Equality Act or in respect of a constructive dismissal claim. Every employer has a duty of care to ensure the welfare of their staff. It’s also important that employers ensure that the working environment doesn’t become toxic for workers because of a misunderstanding of the line between ‘a bit of banter’ and workplace bullying.
Sometimes, though, a joke is just a joke, and a one-off incident of light-hearted mockery may be perfectly acceptable in the eyes of the law. If, however, that one-off joke turns into a campaign of abuse and bullying, then it’s time to stamp it out.
If you feel that your business has issues in addressing workplace bullying, talk to a legal expert in employment law who will be able to help you decide on your next step.
We hope that this run of blogs has been helpful in highlighting what can be problematic issues which can come into focus at Christmas. However, we also hope that your business does not require to deal with any of these matters and all and any workplace celebrations which you have planned go without a hitch.
To guard against any accusations that we at MSHB are taking the fun out of Christmas by focussing on these unpleasant topics, we thought we would end this mini-series by showing some goodwill of our own. To this end, we will be gifting a £25 Amazon gift card to the first person to correctly tell us:
What are the names of the 3 wise men?