A bit of ‘banter’: office politics or an employment issue

11/12/2019

There won’t be many employees who, at one time or another, haven’t made an ill judged comment or two about their boss during conversation with a friend.

But when it’s a Labour MP recorded criticising his boss – in this case Labour leader and would be Prime Minister Jeremy Corbyn – and it is leaked to the media, it puts a different slant on office gossip.

Although the politician Jonathan Ashworth has dismissed it as ‘banter’, there’s no such thing in the workplace, says Julia Fitzsimmons, an Employment Partner with FBC Manby Bowdler:

One person’s joke can be unwanted offensive conduct to another member of staff and if the joke meets the statutory definition of harassment then the victim may bring a claim against both the perpetrator and the employer so it’s something that employers do need to be aware of.

Banter would qualify if it violates the other employee’s dignity or creates an intimidating, hostile, degrading, humiliating or otherwise offensive environment for the other employee and is related to the employee’s gender, race, religion, disability, sexual orientation, age or is on the grounds of gender reassignment or marital or civil partnership status. 

It doesn’t even have to be a sustained course of conduct - a one-off incident can amount to harassment and the victim doesn’t have to have made the perpetrator aware that the conduct was unwanted.

If you have staff, where do your responsibilities start? An employer is treated as liable for the acts of its employees regardless of whether the employee’s acts were done with the employer’s knowledge or approval.

You can defend such claims if you can show that you took all reasonable steps to prevent the discriminatory banter.

Reasonable steps would usually include:

· Having, and implementing, an equal opportunities policy and anti-harassment and bullying policy. Keep these under review and make sure managers are trained in the procedures

· Making sure all employees are aware of the policies and their implications

· Training managers and supervisors in equal opportunity and harassment issues

· Taking steps to deal effectively with complaints, taking appropriate disciplinary action

· Issuing a guide to employees as to who they can speak to should they feel harassed intimidated or bullied.

Julia added: “The consequences of turning a blind eye to banter can be costly for an employer as compensation for discrimination is potentially unlimited. Not only that, the negative PR of having a discrimination claim brought against your organisation or losing a claim could impact negatively on future contract negotiations as well as affecting your reputation.”

If you’d like advice on your responsibilities towards staff on any employment-related issue, you can contact Julia on the details below.

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