66 claims relating to banter were heard in employment tribunals last year, shows research carried out by leading specialist employment law firm, GQ|Littler.
Several claims were brought where comments one employee considered to be “banter” could be classified as bullying or harassment, especially in the case of discriminatory jokes relating to race, gender, nationality, or sexual identity.
Some examples of cases where banter has sought to be used as a defence in the past year include:
- Comments made implying that an employee of Asian ethnic descent had a bomb in his bag.
- When an employee was putting on lipstick, her colleague is alleged to have said “you know what they say about red lipstick.” When asked “what do they say?” her colleague replied that prostitutes wear it.
- One team member texted “Hey ppl tomorrow we have Jerk chicken or curry chicken … Lets bring carnival into the office”. Another team member responded “If we are bringing carnival into the office who is bringing the drugs and knives?” – this comment was directed towards an employee of Afro-Caribbean background
- One employee expressed that they were looking for someone to clean their house and suggested that their Eastern European colleague do the job “as he knew they would be able to do that kind of job and do it properly”
As per previous years, there was mixed success in using ‘banter’ as a defence: sometimes employers may successfully use ‘banter’ as a justification if it can be argued that the conduct wasn’t unwanted (e.g., if the alleged victim also joined in), that the behaviour was not related to a protected characteristic or that the conduct didn’t offend the alleged victim (or could not reasonably have offended them.
In order to help avoid harassment or bullying claims, employers need to ensure that humour doesn’t cross the line. In certain cases they may be held vicariously liable for harassment that occurs outside of the workplace or working hours, for example comments made on private messaging platforms.
Lisa Coleman, Senior Associate at GQ|Littler says: “Whilst humour in the workplace should be encouraged, employers should be taking active steps to foster a respectful and inclusive environment with clear boundaries.”
“It is often the case that what one person finds funny another might find offensive. However, to try and stay on the right side of the line, people should be mindful to keep jokes to those they are comfortable repeating and explaining if questioned about them, and avoid those which cross into offensive territory, especially those which relate to protected characteristics.”
GQ|Littler is a leading specialist employment law firm and the London office of Littler, the largest global employment and labour law practice devoted exclusively to representing management. With more than 1,700 lawyers in 100 offices across 28 countries, Littler serves as the single source solution provider to the global employer community.
Offering risk-based contentious and non-contentious advice, our legal expertise includes employment, immigration, data privacy and employee tax and incentives. Our client base spans a wide range of sectors including financial services, technology, healthcare, professional services and luxury goods, in the UK and internationally.
GQ|Littler is recognised as a leader in its field by both Chambers & Partners and Legal 500. The firm is described in Legal 500 2023 as “undoubtedly the best boutique firm specialising in employment law for employers in London.” For expert insight into the pandemic’s impact on the future of the European workplace, including how employers are responding to a myriad of workplace issues and ever-changing regulations, see Littler’s European Employer Survey Report.