In 2018, former sales rep David Evans brought claims including discrimination and victimisation against his former employer, Xactly, after a co-worker referred to him as a ‘fat, ginger pikey’. Despite the striking nature of the insult, and its racist undertones (Evans had links to the traveller community), none of the claims were upheld by the tribunal, nor at appeal. The reason? It was ‘just banter’.
So it seems not only has banter become a term widely used in pubs and on Twitter to denote – as the OED has it – “the playful and friendly exchange of teasing remarks”, it is also now a firm staple of many workplace interactions, and can even be relied on as a defence at employment tribunal.
A crucial factor in the Xactly case was Evans not raising the incident for months, until he was facing other disciplinary proceedings. But the appeal tribunal’s verdict also hinged on the fact the comments were part of a banter culture Evans himself participated in. He had used similarly offensive language in the workplace, the tribunal heard. And so it decided, as the banter exchanged in the company was “indiscriminately inappropriate”, Evans had not been singled out or victimised.
But, Ashfords employment lawyer Charles Pallot explains, it was likely only a victory on paper for Xactly: “I would be surprised if the publicity around the case had done that business any favours.”
According to Pallot, when workplace banter gets out of hand, a tribunal ruling rarely draws a line under the issue. “Once you get down into arguments as to whether or not it was appropriate for her to laugh – or ‘she did laugh, but did she mean it or not?’ – no one emerges with any credit from that line of cross examination,” he says. And the ruling could easily have gone the other way, he points out – as it has for numerous employers led down the “sticky path” of defending potentially discriminatory and harassing behaviour as ‘just banter’.
As Evans’s plight demonstrates, context is all, Pallot explains. HR often mistakes a complainant laughing along with banter as evidence that no discriminatory or bullying behaviour has taken place. But an employment tribunal may well disagree – as in the case of a female employee repeatedly subjected to Carry On-style sexual jokes (see box, right), with the tribunal ruling: “[Banter] can easily transform into bullying when a subordinate employee has no alternative but to accept/participate in this conduct to keep his or her job.”
So given its reputation and employee relations-destroying potential, not to mention the costs associated with claims, banter is a serious issue for employers. And it’s an area increasingly urgent and complicated post #MeToo, as companies seek to tackle workplace harassment and sexism, and as wider issues of diversity, particularly inclusion, rise up HR’s agenda. In fact, a recent letter to 400 employers from the Equality and Human Rights Commission, highlighting new guidance on tackling harassment, specifically mentioned the dangers of banter.
“We now see that with the rise in reporting sexual harassment, there is more alertness towards the issue,” says Elisabeth Kelan, professor of leadership and organisation at the University of Essex. But, she stresses, this is a tricky area for HR to navigate because some forms of banter have an important role in cementing a sense of community and camaraderie, and “mak[ing] work – in many cases – bearable”.
Dr Barbara Plester, senior lecturer at the University of Auckland in New Zealand, who has written two books on workplace humour, agrees. “It is difficult to ‘manage’ humour at work, as controlling banter may eradicate it,” she says.
So how can HR help colleagues tread an appropriate line between ‘just a bit of fun’ and harmful – potentially even unlawful – banter?
According to Pallot, the first thing an employment lawyer will ask an organisation facing a claim is if they have a policy on the issue. If they don’t, building a defence will be difficult. As ever though, a policy on its own is far from enough. If the offensive language or behaviour in question has always been condoned or laughed off by managers, a company’s rules are “nothing more than a piece of paper”, warns Pallot.
In terms of other key legal principles to be aware of, arguably the most important is that offence is judged not by whether the person dishing out the banter meant to offend, but whether they did. In other words, ‘I was only joking’ is never a watertight defence.
Also important is how banter might affect someone by association – that is, even if the remark was not directed at them, or they do not possess the characteristic the joke concerned. “A classic situation might be in an open-plan workplace or a factory setting – a big area with lots of employees working together,” Pallot says, giving the example of two men sharing a sexist joke. A woman may not be involved in their conversation, but the men are still creating a hostile work environment for her.
Or someone might overhear a remark they deem to be racist and take offence, particularly in relation to a BAME friend or family member, even though they are white British themselves – a legal principle termed ‘harassment by association’.
Of course HR ‘getting banter right’ goes far beyond just ensuring legal compliance. Most employees who feel they’ve been subject to offensive banter won’t want to escalate things as far as a harassment or discrimination claim. But this doesn’t mean their experience won’t have a detrimental impact on their wellbeing and performance. Sarah Guerra, director of equality, diversity and inclusion at King’s College London, says banter should always be taken seriously for this reason. “If the humour rests on teasing or mocking, then you’re always on slightly dodgy ground,” she says, comparing banter to “a gateway drug”.
The “worst possible response” Kelan has observed is HR telling the person to ‘just toughen up’. “HR needs to take those things seriously, and avoid any value judgement on how an individual perceives his or her reality,” she says.
Kelan also reports witnessing HR teams dealing completely differently with complaints, depending on the individuals involved: “It was based on who was complaining about what in which circumstances – how much political power they had, etc.”
Organisations often make the mistake of letting certain employees get away with bad behaviour because they make a lot of money for the company, or are ‘top talent’ in some other way, says Pallot. “Actually, [these people] leave a trail of harassed employees in their wake, because their way of being successful is just to do whatever they like, in the expectation that nobody will touch them,” he says.
But once again a balance must be struck. While intention might be irrelevant in the eyes of the law, HR should still take this into account when attempting to diffuse complaints before they make it as far as a tribunal. Plester warns against responding heavy-handedly in scenarios where banter was genuinely meant as a harmless joke or prank. “There is a useful middle ground where workplaces can recognise that humour sometimes unintentionally causes upset and the joker is genuinely sorry for causing distress,” she says.
Guerra agrees: “If I have to tell you a second time then it is a more deliberate act. But the first time, it’s reasonable to assume ‘you didn’t think about it; you didn’t know’.”
In fact, clamping down on banter too harshly can be counter-productive, Kelan points out. “[Offensive comments] still seem to happen, but they are prefaced with the sentiment: ‘I know I shouldn’t be saying it, but I’ll go ahead and do it because I don’t want the political correctness police to have the victory,’” she says.
For Kelan, an effective strategy will involve being proactive rather than just reacting to instances as they arise. Managing banter is about training and education that will nudge people’s behaviour in the right direction and help them learn from their mistakes, she says.
What is crucial, most agree, is constant dialogue and debate so employees can continually keep each other in the loop about what they do and don’t find amusing. This will ensure those who feel victimised by banter are genuinely listened to – but with the ‘perpetrator’ also given the chance to understand why they’ve (hopefully accidentally) caused offence, and how to avoid this next time.
“It’s a bit like sex,” says Guerra. “Are you both enjoying it? Have you both agreed to do it? If you haven’t, then it’s not ‘just banter’.”
Is it just banter?
Sarah Armstrong, partner at Gunnercooke, reveals whether these real-life instances of banter gone wrong were found at tribunal to be ‘just banter’:
"Irish gypsy with a funny accent"
No. A tribunal upheld claims of race discrimination, race-related harassment and constructive dismissal against Housing 21 after a line manager described one of her reports as having a “funny accent”, called her an “Irish gypsy” and likened her to people from reality show My Big Fat Gypsy Wedding.
No. A tribunal ruled that, although this is often perceived as an innocent phrase, the environment of “healthy banter” at Snows Business Forms crossed the line into racial harassment when an employee of Indian origin was called a “cheeky monkey” during a business-related round of golf.
"Don't like football? You're gay then"
No. When an employee of Samuel Grant (North East) told colleagues he was not interested in football, they told him he was “gay then”. Their continued taunts amounted to harassment, a tribunal found.
"Watch your back or I'll make sure you're out"
No. When a Wernick Event Hire employee lodged a complaint about a colleague’s Carry On-style sexual comments, he claimed his subsequent warning to her to “watch your back or I’ll make sure you’re out” was just banter. The tribunal disagreed, and awarded the claimant more than £20,000 in damages.
"Did you cut your hair yourself?"
Yes. This is a hypothetical scenario Armstrong offers to illustrate the key principle that banter should be a playful and friendly exchange. “So, for example, one person teasing another about a bad haircut and the other responding with comments about something they are wearing,” she explains. “Banter is likely to be acceptable as long as it is not unwanted and does not relate to a protected characteristic.”