Understanding when the workplace joke goes too far and when urgent action is needed.

‘It was just a bit of banter’ is an explanation habitually used by desperate employees facing allegations of unacceptable behaviour – but the situation is often not a laughing matter.

The phrase is one of the most common and worrying, which is often used to justify inappropriate and bullying behaviour in the workplace.

The person on the receiving end of offensive banter is made to feel they cannot take a joke, and the term aims to convince anyone else considering it to accept that inappropriate behaviour was really well-intentioned and good humoured.

An employee may believe their behaviour is just banter, when the reality is their actions amount to bullying, racism or homophobia.

Just because one employee has convinced themselves what they have said to a colleague is banter, does not necessarily make it so.

A Google search for the meaning of banter sees it described as a noun, which means: the playful and friendly exchange of teasing remarks and exchange remarks in a good-humoured teasing way  [1 cited 2.5.23]

Making fun of the way someone walks, talks or looks may seem like a bit of fun but it could be found to be bullying if is hurtful, offensive or discriminatory.

No employer wants to be a killjoy and stop employees having some fun, at the appropriate time, in work so it is essential that all staff are made aware of what is and is not acceptable behaviour at work.

An employer has a duty to  prevent bullying and harassment in the workplace, and it can be found liable for any harassment an employee suffers.

Employers should keep this in mind because research published last year suggests more cases are now going to employment tribunals as a result of ‘banter.’

The number of cases relating to the use of ‘banter’ in the workplace was reported to have risen by 44 per cent from 67 in 2020 to 97 in 2021[2 cited 2.5.23] .

If genuine banter is part of a workplace culture it can lull employees into a false sense of security and lead to a lapse of judgement and blur the lines between what is acceptable and unacceptable.

A notable case in this respect, dealt with in recent years, was Evans v. Xactly Corporation Ltd  [3 cited 2.5.23]

As part of the case , the employee alleged that during his employment he was at times referred to as ‘fat ginger pikey,’ ‘salad dodger,’ ‘fat yoda’ and ‘gimli’ (a Lord of the Rings character), which amounted to harassment.

The tribunal ruled the comments did not amount to harassment. The context in which they were made was key.

The employee had taken part in office banter, and the tribunal found that he was not genuinely offended by the comments made to him.

It is why the line between genuine workplace banter and bullying and harassment may perhaps have become blurred and confusing.

Here we take a closer look at banter in the workplace.

Banter or bullying?

Banter in the workplace is the light-hearted and playful exchange of comments or jokes between colleagues.

Genuine banter can help to build working relationships and create a positive and enjoyable working environment.

Sarcasm, teasing, silly jokes are different forms of banter that can be fun and not taken too seriously.

But it should never be hurtful or discriminatory and should always be careful of the feelings of others and boundaries.

Bullying is characterised by ACAS as: unwanted behaviour from a person or group that is either: offensive, intimidating, malicious or insulting, an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone  [4 cited 2.5.23]

Unwanted behaviour can be considered harassment if it relates to any of the protected characteristics covered by the Equality Act 2010 e.g. age, sex or disability [5 cited 2.5.23] .

Examples of when banter can cross the line and become bullying or harassment in the workplace include:

• Mocking a colleague’s physical appearance whether it is their weight, height or a facial feature, can be cruel and hurtful.

• Making fun of someone’s religion of belief, physical or mental disability or sexual orientation, can be discriminatory and disrespectful.

• Mimicking a workmate’s foreign accent or ridiculing their English language skills can be incredibly upsetting and lead to feelings of isolation and exclusion.

• Continuing to act in a particular way after being asked repeatedly to stop e.g. using an insulting nickname or taunting about a specific matter, can be considered bullying.

Banter can never be used as a legitimate excuse to demean or undermine anyone in any workplace.

All employees need to be aware and alert to the impact their words can have on others.

How to determine if banter is really bullying.

This will always need careful consideration, which should take into account the circumstances and effect on the complainant.

In deciding if banter has crossed the line, and in fact meets the definition of bullying there are some key factors that will need to be contemplated.

• How bad is the banter: is it playful, a one-off or is it ongoing over a period of time?

• Aim: can it really be considered light-hearted or was it intended to intimidate, be unkind, malicious or belittle someone?

• Impact: Has it caused upset or resulted in someone feeling harassed and had a detrimental impact on their work or general well-being?

• Working relationship: Is it a senior employee and a subordinate?

The answer to such questions and weighing up the factors will help to decide if what is said to be banter, or attempting to be excused as it, is in fact really bullying.

If it is happening regularly, is severe, is deliberate and cruel, involves a power imbalance, and is having a harmful impact on the person on the receiving end of it, then intended banter may be considered bullying.

An employee should make a complaint if they feel jokes at their expense have gone too far, and employers should take any such complaint seriously.

How is an employer expected to deal with a situation when alleged unacceptable behaviour is described as ‘just a bit of banter?

Take any complaint seriously, investigate it thoroughly and fairly and take any necessary action in response to the investigation findings.

Typically an employee will raise a formal grievance if they believe work-related banter has gone too far and it has caused real upset [6 cited 2.5.23].

In such circumstances an employer is expected to act without unreasonable delay, conduct an investigation and support the employee making the complaint.

The ACAS Code of Practice sets out the typical steps an employer should take when conducting a reasonable investigation in response to a complaint of any nature[7 cited 2.5.23]

If an employer fails to deal with hurtful banter or any other form of harassment or discrimination it could face legal action from an employee, suffer reputational damage and result in a decrease in productivity.

Is it not easier just to ban banter in the workplace?

Legitimate banter can help to build working relationships and create a positive and enjoyable working environment.

So, employers should discourage banter that can be hurtful, offensive, or discriminatory.

All organisations have a duty to ensure the workplace is safe and respectful, which includes dealing with any excuse for banter, which may cause misery or uneasiness for any employee.

There are steps an employer can take to be positive and proactive to deter inappropriate banter.

Have clear guidelines regarding acceptable and unacceptable banter; have awareness training for employees; have policies in place that make it easy for employees to raise any concerns; and lead by example in creating a positive and respectful work environment and in setting the tone for how employees interact with each other.

By taking such steps, employers can deter unsuitable banter and promote a positive and respectful work environment for all employees.