Workplace ‘banter’ is continuing to pose challenges for businesses, with 57 related employment tribunal cases recorded last year.
Research carried out by GQ Littler found discrimination and bullying were among the allegations made by disgruntled workers who took legal action against their employers.
The employment law firm is now warning organisations that they could face uncapped claims as unchecked workplace banter is blurring the line between fun and harassment.
Among the cases reported – which amounted to more than one per week – were those relating to “jokes” that included racist, sexist or homophobic elements.
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One example was where an employee allegedly experienced sexual harassment masked as ‘banter’ when a colleague placed his arm around her neck and asked for a kiss, while another reportedly had crude jokes directed at him by a female co-worker who found “brown men attractive”. She allegedly called him “babe” and asked to be his “second/work wife”.
In another case, two employees took part in constant ‘banter’, reportedly calling each other ‘fat’ and ‘bald,’ before insulting each other’s partners.
According to GQ Littler, tribunals considered employers’ alleged failure to act to prevent such behaviour from escalating in the workplace.
It highlighted these kinds of claims in employment tribunals can damage an organisation’s reputation and can also be extremely costly, especially as compensation for discrimination and harassment cases are uncapped.
Dónall Breen, senior associate of GQ Littler, said: “What’s often surprising about these cases is how initially harmless or jovial situations have gotten out of hand due to lack of intervention by management when it became clear lines were being crossed.
“Nobody wants to clamp down on joking around at work, it’s an essential part of the workplace. However, its often too easy to chalk increasingly problematic behaviour up to ‘banter’ when, in reality, someone needs to step in and shut down conversations or conduct which is crossing the line.
“Employees need to know where that line is and employers must ensure it’s respected. As an acid test, if you would be embarrassed telling your grandmother what was said or done, it’s not appropriate for the workplace.”
Breen suggested that the pushback against DEI in the US could be misunderstood by some as a licence to use more offensive language, but said employers must be mindful of this.
“As an employer, as long as you remain liable for what happens in your workplace, you need to set the rules,” he said. “A workplace where employees feel safe and respected isn’t just good practice – it’s good business. Ignoring these issues risks costly legal claims, hefty compensation payouts, and lasting reputational damage.”
GQ Littler explained that employers can be held vicariously liable for offensive remarks made by employees, even when this happens outside normal work hours or on messaging apps. It added that they must have clear policies and training in place to prevent issues before they escalate as remote work and new communication styles are blurring traditional boundaries.
Under the new Workers Protection Act 2023, all employers will have a duty to proactively take “reasonable steps” to prevent sexual harassment of their employees in the course of their employment.
“There is no doubt that tackling problematic banter in the workplace of a sexual nature would fall under this new duty” Breen added.
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