It is common for employees to banter amongst themselves at the office. It lifts the atmosphere and allows colleagues to relax and bond with one another. It is often harmless but sometimes the joke can be taken too far and employees can find themselves subjected to harassment. It is important to know when banter risks turning into bullying or harassment which might give rise to a claim of discrimination.

What is harassment?

Harassment under the Equality Act 2010 is a type of discrimination and must be distinguished from general bullying which is not protected by the law. 

Person A harasses Person B if Person A engages in unwanted conduct related to a relevant protected characteristic and the conduct either violates Person B’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for Person B. These effects need not be intended.

The nine protected characteristics are:

• Sex
• Race
• Religion or belief
• Age
• Sexual orientation
• Disability
• Gender reassignment
• Pregnancy or maternity
• Marriage and civil partnership

Banter risks being harassment when it is related to one of the characteristics stated above.

Who decides on where the line is drawn?

Whether or not banter amounts to harassment depends on the culture of the workplace and the context in which comments are made. “It was just banter” is usually not an acceptable defence to a discrimination claim. 

However, in a recent case it was held that being called a “fat ginger pikey” was not disability or race harassment. The Tribunal took into account the office culture, the circumstances surrounding the comment, the relationship the Claimant had with the maker of the comment and the Claimant’s own personality. The Tribunal acknowledged that the office culture was one of “jibing and teasing” which was not uncommon for “competitive sales people working under stress to achieve their targets.” The Claimant himself was known to be an active participant in the banter.

The assessment of harassment claims is therefore highly fact sensitive.

How to create a positive workplace culture and prevent harassment

As an employer, you should be mindful of what type of culture is being fostered in your organisation and ensure the necessary frameworks are put in place to prevent harassment.

You should:

1. Implement clear policies on anti-bullying and harassment
2. Take appropriate disciplinary action against offenders of the policy
3. Provide diversity training to employees which includes examples of unacceptable comments
4. Fairly and consistently investigate complaints of harassment