Employment tribunal claims based on ‘banter’ are on the rise. It is reported there were 66 claims in 2022. The rise in cases based on ‘banter’ are a reminder that what might be amusing to some can be offensive to others. This leads to a risk of discrimination claims (particularly harassment) if the banter relates to one of the protected characteristics such as sex, race or religion. It also leads to an increased risk of constructive unfair dismissal claims where an employee resigns, claiming that workplace banter breached the implied term of mutual trust and confidence.
These risks also apply to conduct outside of working hours and even on social media platforms outside of work. Employers can be liable for harassment in such cases. The breadth of circumstances where ‘banter’ could lead to liability for employers is demonstrated by the recent news that the Chartered Management Institute is warning employers to cut down on alcohol at work parties following a new poll suggesting a third of managers have seen harassment or inappropriate behaviour at parties.
Claims for harassment focus on the impact of behaviour and language on the particular employee. There is little account taken of the potential over-sensitivity of the individual bringing the claim. Harassment does not even need to be directed at the person who is harmed; it is sufficient that they have been exposed to the behaviour, even if this is as a by-stander.
The best way to protect your business from liability in these cases is to:
- take a pro-active approach to training on bullying and harassment and focus on workplace values of equality and diversity.
- make all employees aware of their obligations.
- adopt a robust position and stamp out any inappropriate behaviour.
By taking these steps, employers will hopefully avoid claims arising or, if they do, will be able to put forward a defence that they took all reasonable steps to avoid the behaviour occurring.
Find out how we can help. Our partner, Jon Dunkley, heads the Wollens specialist Employment Department. Contact him today for an informal chat, without obligation on 01271 342268 or via email at [email protected].
