UK employment tribunal cases relating to 'banter' up 45 per cent in 2021

Research by specialist employment firm GQ|Littler has revealed the number of employment tribunals claims in which ‘banter’ played an integral part to the respondent’s defence increased by 45 per cent in 2021.

The firm said “banter” has increasingly been used in tribunals as justification for alleged discrimination and harassment. However, what one employee claims is “banter”, may be bullying or harassment, particularly if someone is subjected to discriminatory jokes on the basis of race, gender, nationality or sexual identity.

“Banter” is often cited in relation to harassment claims. Under the Equality Act 2010, unlawful harassment occurs where a person engages in unwanted conduct related to a relevant protected characteristic, and this has the purpose or effect of (i) violating their dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

GQ|Littler provided examples of where cases in which employers have unsuccessfully tried to plead bullying or harassment was mere “banter”. These included an employee of Indian ethnicity who was called a “cheeky monkey” during a business-related round of golf; an employee who was told he must be “gay then” if he did not like football; an employee who was called “half-dead Dave” due to his age, and an employee who was called “menopausal” and a “dinosaur” due to her age and sex.

However, the firm said “banter” has been used as a successful defence in some cases. In the case of a sales representative who was referred to as a “fat, ginger pikey” due to his weight and Traveller background, the claim failed, partly because the tribunal ruled the office culture normalised “banter” and the claimant himself had engaged in similar behaviour.

Employers may successfully use “banter” as a justification to argue the conduct was not unwanted – for example, if the employee had previously engaged in similar behaviour; the behaviour did not concern a protected characteristic, or the conduct did not violate their dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for them. Essentially, employers may argue that either the employee was not offended by the conduct, or it was not reasonable for them to have been offended.

GQ|Littler explained the individual bringing the complaint does not need to possess the protected characteristic relevant to the conduct in order to be offended. For example, if a person is wrongly assumed to have a certain characteristic, they can be harassed on that ground – for example, a turban-wearing Sikh man subjected to Islamaphobic “banter” could be harassed on religious grounds despite the wrong assumption being made about his faith. Additionally, someone could be subject to harassment by insensitive comments about a particular person or group other than themselves, if it satisfies the test above.

Employers can be found to be vicariously liable for any discriminatory comments made by employees, provided these were made “in the course of employment”, even if this falls outside of working hours.

Lisa Rix, senior associate at GQ|Littler said: “Humour in the workplace is important – it can help boost morale and reduce stress. However, employees should be wary of making jokes that stray into offensive territory, especially ones which relate to protected characteristics.

“People should think about how that joke would sound being repeated back to them and whether they would feel uncomfortable trying to justify the comments if questioned about them. If that would feel awkward or embarrassing, best not to say it in the first place.

“But this doesn’t mean the end of workplace fun: it is possible to make jokes which don’t constitute harassment!”

GQ|Littler said the overall, long-term increase in cases may be due to employees communicating with one another more through informal instant messaging services such as WhatsApp or Slack which may be used as evidence.

The firm said the majority of employers are aware of the protections afforded to employees under the Equality Act relating to issues of discrimination and harassment, and do have up-to-date and comprehensive policies on equality, diversity and inclusion.

However, it warned employers must remain vigilant with regard to workplace culture generally to ensure it is professional and appropriate, as well as fun. It recommended up-to-date training, relevant to communication in a modern workplace should be provided to employees regularly to ensure all workers know what is and what is not appropriate workplace behaviour.