The changing face of harassment and discrimination: when office banter becomes an expensive tribunal claim

In an era of enhanced discrimination and harassment protections, employers appear to be becoming increasingly exposed to the risk of tribunal claims which carry unlimited awards which can run into hundreds of thousands of pounds, in the very worst cases. A now commonplace concern is the often cited excuse that the behaviour was mere ‘office banter’. Whilst this concept stirs up a variety of connotations including rude jokes, explicit language, nicknames and teasing, the real issue is whether such behaviour is simply a light hearted exchange or conduct that is capable of offending or intimidating other employees.

Whilst employers may be wary of being labelled a killjoy, it is important that these risks are addressed as the line between playful exchanges and discriminatory behaviour can often be a very fine one.

Changing attitudes

In discussing this issue, it is interesting to note how attitudes have evolved in the last few decades. If we turn back the clock 30 or 40 years, overtly sexist attitudes and explicit language of the kind played out in today’s popular sitcoms such as Mad Men, were relatively accepted as part and parcel of a very male dominated workplace. However in recent times we have witnessed the steady rise of female independence and women entering a variety of workforces. These developments can be coupled with the rising protections conferred by anti-discrimination, harassment and victimisation legislation of all kinds. Each statutory addition has assisted in augmenting the protection for those employees that possess what we now call the 9 ‘protected characteristics’: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

Notwithstanding the significant change in general awareness of discrimination law issues of all kinds, in the present day workplace, we appear to be witnessing a turning of the tide, with inhibitions becoming less restrained and office banter slowly returning to fashion. Whilst we have not conducted any survey, our experience is that employees can find it hard to draw a line between how they talk to their friends on social media and what is acceptable conversation in today’s workplace.

Practical examples

Before setting out our suggestions for tackling office banter, it is useful to highlight a series of cases where discrimination has been found from conduct that might be perceived by some as office banter.

Notable examples include:  

• A heterosexual employee was repeatedly called names such as “faggot” because he had attended boarding school and lived in Brighton.
• An employee in his 50s appeared to be underperforming and during a discussion with his manager was told: “you are not 25 anymore”.
• An employee with Irish origins was repeatedly likened to women from the TV programme, “My Big Fat Gypsy Wedding”.

Whilst these cases tended to be coupled with a pattern of other offensive behaviour, taken together they were serious enough to warrant a declaration of discrimination. Such rulings have even been made in instances where the alleged victim has engaged in or even initiated the offending behaviour.

How should employers respond?

Where a culture has become instilled in a workforce, instigating a change in attitudes is essential, if claims are to be avoided and a good working environment maintained.

As a means of tackling this, it is recommended that employers consider the following steps:

• Policies: Implement and maintain unambiguous anti- discrimination, bullying and harassment policies and ensure that these are clearly communicated to all employees.  
• Training: Provide regular training for employees to ensure that they have sufficient understanding of what is acceptable and unacceptable conduct.
• Grievances: Take employee’s complaints very seriously straight away and conduct thorough investigations and (where appropriate) follow up with disciplinary action where harassment or discrimination is proven on the balance of probabilities. These actions should be taken in accordance with the procedures set out in the relevant company policies and any sanction imposed should be reasonable and proportionate to the offending conduct.  
• Look and Listen: Employers can help themselves by ensuring that managers are well trained in these issues and are visible in all parts of the workplace, with their ears and eyes open to help them to ensure that appropriate standards are maintained.

Whilst we are not suggesting converting the workplace into a cheerless environment in which employees are fearful of making even the friendliest of exchanges, it is important that boundaries are set to avoid fostering a culture that dangerously strays into the realms of discrimination. It is undoubtedly the case that employers remain able to encourage a pleasant and sociable office without sanctioning intimidating, hostile or unwanted behaviour. If you would like more advice on any of the issues raised in this piece, please do not hesitate to get in touch with a member of our Osborne Clarke employment team.