However, not everyone has the same sense of humour. When should someone’s lack of sense of humour or poor taste in jokes cause an employer concern? Why should an employer try to prevent banter from going too far and what does “going too far” mean?
We try to answer these questions below by considering some key areas where office banter might amount to discrimination, particularly highlighting a couple of common misconceptions.
Misconception 1 – Employers do not need to be concerned about a team member’s derogatory comments about gay people if no one in the team is gay.
This is not true for the following reasons:
The Equality Act 2010 provides for protection against discrimination of workers with various “protected characteristics”. These protected characteristics include sexual orientation, but also age, race, disability, sex, gender reassignment, religious or philosophical belief, maternity and pregnancy and marriage and civil partner status.
An employee’s conduct can amount to harassment if it is related to a protected characteristic. If the conduct is related to a characteristic, a person does not need to actually have that characteristic. For example, if employees shun a co-worker because they think he is gay or because he has a friend who is gay, even if the co-worker is not gay, the conduct is related to the sexual orientation characteristic, so it could amount to harassment (a type of discrimination).
In the case of English v Thomas Sanderson Limited (2008), an employee’s “tormentors” repeatedly called him names such as “faggot”, because he had attended boarding school and lived in Brighton. The employee was not gay, his “tormentors” did not believe he was gay and he knew his tormentors did not believe him to be gay. The Court of Appeal held that this “homophobic banter” directed at the employee could be unlawful harassment.
Misconception 2 – if an employee themselves starts the banter they cannot later claim that they were discriminated against.
This is not true for the following reasons:
Part of the definition of sexual harassment is that the conduct is “unwanted”. An employer may try to argue that the conduct cannot be “unwanted” if the employee themselves has initiated sexual banter.
However, in the case of Munchkins Restaurant and another v Karmazyn and others (2010), the Employment Appeal Tribunal (EAT) made it clear that conduct may be “unwanted” even if an employee has put up with conduct over a number of years, and even if the employee has initiated talk of a sexual nature as a coping strategy.
The unwanted conduct in this case included asking the employees about their sex lives. The employees initiated banter by asking their boss questions about his love life as they found this made him easier to handle and was a tactic to divert attention away from their own sex lives.
Why should employers do anything about office banter and what can they do?
If comments in the office do amount to discrimination, employers should bear in mind that the offended employee could bring the following employment tribunal claims:
- For discrimination, such as harassment (which in theory would have unlimited compensation); and
- If the employee resigns because of the discrimination, they could bring a claim for constructive unfair dismissal, arguing that the duty of trust and confidence has been breached.
To avoid such situations arising, employers should ensure that employees are aware of how their comments could be perceived by others. Harassment can be unintentional or subtle. It may involve nicknames, teasing or name calling which may not be intended to be malicious.
Sometime a quiet word with an employee whose comments may have over-stepped the mark could be sufficient, but in more serious cases employers should not be reluctant to use their disciplinary policy to enforce non-discriminatory principles.
It is also a good idea to provide employees with training in relation to discrimination both on induction and regularly thereafter. As part of this, it is a useful reminder that employees can be personally liable for unlawful discrimination committed by them during their employment.
These steps may just make employees think twice before making a discriminatory comment too far during office banter.
This is a featured article from the April 2014 edition of FGazette, the quarterly newsletter for FG Solicitors. To view past editions and to read other similar articles please click on the following link: