When does 'banter' in the workplace become unacceptable?


What does harassment mean?

The Equality Act (2010) contains provisions that make harassment at work unlawful - whether perpetrated by a manager, a colleague or a third party (such as a customer).

For some employees, workplace ‘banter’ can become unacceptable harassment. This is because while some kinds of language, gestures or jokes may be tolerable to some people, another employee may feel that the ‘banter’ is aimed at them personally, due to a particular characteristic of theirs, and they may find such verbal behaviour offensive and an assault on their dignity.

The Act defines harassment as ‘unwanted conduct that violates people's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment’; and sets out nine categories of personal characteristics that are automatically protected from discrimination by means of harassment, namely:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnerships
  • Pregnancy and maternity
  • Race
  • Religion and belief
  • Sex (male or female)
  • Sexual orientation

How much should I tolerate?

The Equality Act allows for a low threshold of tolerance regarding harassment in the workplace; and an employer may be liable as they have a duty of trust and care towards their employees. Therefore, it is in the best interests of employers to inform the workforce of the undesirability of harassment, and to act decisively if such behaviour is brought to their attention.

What will a tribunal investigate?

If the issue is not resolved, an employee may feel they are being constructively dismissed. They may resign, take legal advice from an employment lawyer about this breach of the employer’s duty, and make a claim for unfair dismissal at a tribunal. If the matter should escalate that far, the tribunal will consider various factors regarding the alleged harassment, for example:

  • Did the complainant feel harassed by the behaviour in question? This will be much more important than determining if there was any intent to harass by the defendant
  • Even one remark can amount to harassment, if the complainant felt threatened or demeaned; however, a single remark would have to be extreme in nature
  • A failure to object to the banter will not necessarily mean that an assertion of harassment will not be taken seriously, especially if the complainant felt intimidated
  • Was it reasonable for the complainant to feel harassed under the circumstances? If the Tribunal considers the complainant to have been over-sensitive or unreasonable about the remarks in question, then the claim may fail

If you would like to obtain legal advice on harassment in the workplace, Contact Law can put you in touch with a local specialist employment solicitor free of charge. So, if you have any questions or would like our help in finding local employment solicitors please call us on 0800 1777 162 or complete the web-form above.

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