A recent piece of research reported in the Telegraph and Financial Times found that UK employment tribunal cases relating to workplace "banter" rose by 45 percent last year. The research highlighted that the term is increasingly being used as a potential justification for allegedly discriminatory remarks or harassment.
Recent case law has made clear that where workplace banter oversteps the mark it can amount to unlawful discrimination or harassment, particularly where comments make reference to characteristics protected under the Equality Act 2010 such as race, sex or age.
Mediums of workplace banter
Historically, instances of banter in the workplace have typically occurred during an in-person conversation, for example during a coffee break in the office, at a work party or on a construction site. However, with the significant rise in remote working in the last couple of years, employers need to be aware that workplace banter is increasingly taking place over a number of electronic platforms. This doesn't just include email. Less formal means of contact have increased, for example instant messaging services on Microsoft Teams or WhatsApp, and employee forums such as Slack channels. Such communications are in text format meaning that there is a permanent record of what was said, which can easily be retained by anyone privy to the conversation or message. This can also throw up a number of issues in relation to data protection. Despite this, it appears that employees are more inclined to engage in 'banter' on informal work channels. Perhaps employees feel more confident making inappropriate comments when they can't be overheard and are losing sight of the fact that there is a clear record of the conversation.
What can employers do to reduce the risk of discrimination and harassment claims?
Initially, it is important for employers to consider what platforms are being used by its employees to communicate internally and crucially how those platforms are being used. Issues are more common where employees are transmitting messages on less formal messaging platforms, particularly when employees feel that they can use language that they would not ordinarily use in a face-to-face conversation.
Given that employers are generally vicariously liable for the acts of their employees, employers should ensure that employees are clear on the standards that are expected of them when communicating internally with other employees; both in person and online, be that virtually or via instant messaging services. Implementing a visible internal communications policy is a good way to raise awareness of expected standards of behaviour and mitigates the possibility of being on the wrong end of a tribunal claim. Recently, some employers have sought to reduce the number of policies they have in place in order to appear more friendly, however a lack of employee policies can leave employers with little to fall back on if a claim ends up in a tribunal.
In addition to a good communications policy, it is imperative that employers make regular training available for staff in relation to equality and diversity in the workplace (particularly if the employer wants to try and rely on a "reasonable steps" defence). This will ensure that employees are aware of what is and what is not an acceptable conversation to have in the workplace. Any such training should be kept up to date and be effective. The recent case of Allay (UK) Ltd v Gehlen highlighted that equality and diversity training should not just be a tick box exercise and should be refreshed on regular basis.
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