Finding the right words to get a fair outcome when banter causes a problem
Published 13 January 2021
Most workplaces will have what is considered a culture of ‘banter’ in which colleagues feel comfortable pushing the boundaries of acceptable behaviour.
Warren certainly felt the call centre team that he worked in had such a culture.
Nothing was off limits. Colleagues openly discussed their personal and sex lives, swearing was the norm and teasing comments were regularly exchanged.
So, Warren was shocked when he was notified to attend a disciplinary hearing for making inappropriate comments to a female colleague.
The allegation stemmed from a conversation involving Warren, the complainant and four other colleagues.
Warren’s colleague complained to the group about putting on weight and not being as fit as she used to be after a lengthy all-inclusive holiday.
Warren looked her up and down, joked she had let herself go and that she would remain single until she lost some weight.
Those present laughed. The colleague hit back at Warren. She made an insulting comment about his appearance and added she could lose weight but he could not change how unattractive he looked without surgery. Additional insults were exchanged.
Warren thought nothing of it and was shocked when he was later suspended from work and told he would be investigated.
It was not the first time in his working life that he had faced disciplinary allegations.
Warren had previously made a successful claim for unfair dismissal against his former employer after wrongly being accused of fraud.
Although Warren was adamant he had done nothing wrong this time around, he was not taking any chances.
He contacted the Castle Associates Employee Support Centre for help.
Warren provided our representative with all of the evidence he was given by his employer.
In addition to the statement from the employee who had complained, there were four other witness statements that helpfully provided a good insight into the workplace culture.
Warren believed the four witnesses would be supportive of his case.
Prior to the hearing our representative wrote to the employer to request those employees attend the hearing as witnesses.
He referred to section 12 of the ACAS Code of Practice in support of the request, which was accepted by the employer.
Our representative told the disciplinary hearing it was not disputed that Warren acted in the manner alleged and made the comments. He acknowledged to the hearing that there is a very thin line between banter and being inappropriate.
In presenting Warren’s case our representative asserted that in the established workplace environment, and based on the evidence, the comments can be considered banter.
He referred to the witness statements, which supported this claim. In questioning the witnesses at the hearing our representative later highlighted their answers to support Warren’s case that his comments were in keeping with the well-known workplace culture.
The hearing was told that there was evidence that Warren had also been subjected to insulting and offensive comments during the same incident, which had been completely overlooked.
Our representative argued that if he was being disciplined for what he said, and his colleague escaped similar action for the comments she made to him, it was grossly unfair and can be considered discriminatory.
The hearing was told that any complaint against Warren was effectively a grievance, and should have been dealt with as such. An informal approach is usually advised as an initial approach with a grievance.
Our representative said had this been attempted it is likely to have resolved the matter, as Warren was contrite and remorseful for any offence he may have caused.
The hearing was told he had reflected on matters and was keen to work with the company to ensure he would not be involved in a similar incident in future.
Warren was later cleared of the allegation. The company subsequently issued guidance to all staff about treating each other with dignity and respect.