Euan Bruce: ‘Banter’ no excuse for being offensive

The term 'banter' is increasingly common in employment tribunals. Picture: Ian Georgeson

However, the term appears to have taken on a new meaning which seems to encompass a wide range of comments and behaviour which most people would view as inappropriate in the workplace. The defence in most situations where any sort of challenge is raised against such behaviour is an assertion that “it’s only banter” or that the complainer needs to develop a sense of humour.

“Banter” is a term which increasingly crops up in employment tribunals. It is often used there by an individual who has said something to a colleague which, in hindsight, they probably should not have said. By the time that individual seeks to justify his/her comments, it is already too late for that individual or their employer to explain. Unfortunately for the individuals and employers concerned the “it’s only banter” defence does not hold up in a tribunal hearing.

For employers it is a difficult balancing act. On the one hand it is beneficial to support camaraderie between colleagues in order to nurture a positive working environment for staff. However, on the other, it only takes one individual to overstep the mark before camaraderie turns into a staff grievance or a claim of harassment.

The Law: The key piece of legislation in this area is the Equality Act 2010 (the “Act”). The Act gives a legal definition of harassment as being where a person (A) harasses another (B) where A engages in “unwanted conduct” which has the “purpose or effect” of either: 1 Violating B’s dignity; or 2 Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

In addition, the conduct must relate to one of the protected characteristics of the Act (age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation) or be of a “sexual nature”.

Importantly, however, the protected characteristic need not actually apply to the individual who looks to bring a claim of discrimination. The suggestion could be untrue and it still would amount to harassment. Furthermore, the comments do not need to be made by A to B. If A makes comments to C, which are heard by B, then B can still bring a complaint.

The key issue is that the assessment of whether or not conduct has the purpose or effect described above is a subjective one and is based upon the recipient’s perspective, ie did B perceive A’s comments as violating her dignity, regardless of A’s intent.

There is a caveat to this subjective test. If it is determined that the recipient of the alleged harassment could not “reasonably” have perceived the conduct to either violate their dignity or create a “hostile” working environment then this will not amount to harassment. However, unless the circumstances are clear cut, it would be a risk going into any hearing relying upon a reasonable interpretation of another person’s perceptions.

An Employer’s Defence: Where harassment is demonstrated by a claimant it is generally against the employer of their harasser that the claim is brought, on the basis that a company will have financial reserves which most individuals would not.

An employer is therefore responsible for the comments of its employees at all times in the workplace. Some may see this as unfair, and the Act therefore gives employers a defence to shield themselves from a situation where a rogue employee seeks to tarnish the company’s reputation.

But in order to benefit from the protection of this defence the employer involved must demonstrate that it has taken all reasonable steps to prevent such behaviour. What amounts to all reasonable steps will depend upon the size and resources of the employer, but it is not enough to simply have an equal opportunity policy. Instead employers need to demonstrate that a policy is not only in place, but that it has been rigorously applied, both historically and in relation to the current allegation of harassment, with disciplinary sanctions issued to those who have acted in breach of it on a routine basis and that staff have received training on how to comply with the policy. • Euan Bruce is an associate in the employment team at DLA Piper, Edinburgh