HR 19 June 2017

Deciding when workplace banter becomes unacceptable

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Employers should have in place rules determining appropriate behaviour at work

Following recent reports that the boss of an IT firm, in the run up to the general election, told his staff: “Labour voters will be made redundant first”, director at Peninsula Law, Alan Price, asks when it should be time for employers to draw the line on workplace “banter”.

The issue of discrimination has been raised again following a company boss describing a warning he gave to staff that Labour voters in the general election would be “made redundant first” as simply being so-called workplace banter.

For many employers, controlling and restricting workplace banter is one of the hardest areas of managing staff, however, it is important to do so, since banter and jokey behaviour can very easily cross the line and become harassment.

Harassment occurs when a person carries out unwanted conduct related to a protected characteristic which violates another person’s dignity or creates an intimidating, hostile, degrading, humiliating or otherwise offensive environment for that person.

Major areas of harassment that crop up in the work environment include harassment on the grounds of a person’s gender, or sexual orientation. The danger of harassment is that it can be more extensive than employers realise.

The conduct which causes harassment does not have to be verbal or spoken communication. It can take any form of communication, from emails to posters to messages printed on mugs, so long as it has the required effect on a person.

The conduct has to be related to a protected characteristic, however, the person on the receiving end of the harassment does not have to possess that characteristic. For example, making jokes about a person being homosexual when they are actually heterosexual, can still result in a claim for harassment.

In addition, the conduct does not have to be aimed at the person who is raising a concern. Where another colleague has overheard someone making a sexist joke solely to another person, they can still claim harassment even though they were not the intended recipient. This occurs commonly with mis-sent emails, or office notices that are aimed at a certain person.

Even without workplace banter becoming harassment, employers may wish to consider whether they are creating the correct culture in their company, especially if this is having an impact on employee retention.

It is possible to set in place rules about what is appropriate behaviour at work and this can include highlighting what language isn’t acceptable to use. Training on workplace behaviour is also essential. A failure to take any steps to prevent or reduce workplace banter at work could lead to the employer being deemed vicariously liable for acts of harassment carried out by staff.

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