Banter – the playful and friendly exchange of teasing remarks – is deeply ingrained in our national sense of humour. As such, it’s part and parcel of interactions in every workplace in the land, as a form of communication that’s integral to creating a relaxed and friendly environment. But when is banter, or ‘bants’ too much? What happens when it goes too far? When does it stop being funny?

It is important for employees to be aware of the consequences of ‘too much banter’ as well as their own responsibilities in ensuring employees are protected by law.

There’s a thin line between general banter and what could be perceived as a form of bullying or harassment, with the force of the law behind it. Harassment can amount to unlawful discrimination if it relates to a ‘relevant protected characteristic’ such as gender, race, disability, age, sexual orientation or religion.

What does the law say?

There are several practical and legal reasons why employers are advised to take proactive steps to tackle harassment and bullying at work. Each contract of employment contains an implied term that the employer will ensure a suitable environment for the employee to carry out his/her contractual duties. By failing to safeguard against harassment and bullying, which can lead to a hostile working environment for some staff, the employer may be in breach of contract.

The Equality Act 2010 states that an individual harasses another if s/he engages in unwanted conduct that is related to a relevant protected characteristic, and that this behaviour has the intention or effect of violating the other person’s dignity, or otherwise creating an intimidating, degrading, hostile, offensive or humiliating environment for the person.

When deciding whether the behaviour constitutes unlawful harassment, the perception of the ‘victim’, and any other circumstances of the particular case must be taken into account.

What’s more, there is a common law duty for the employer to provide a safe system of work which, in some situations, can also include liability for psychiatric illness if this can be foreseen and prevented.

Offensive jokes, remarks and banter

It is up to the individual employer to ensure that all employees are fully briefed about the types of verbal interaction and general behaviour that might cause offence to others, and to let everyone know that such contact will be unacceptable. As such, jokes, remarks or banter that has the power to cause real offence to other employees should not be tolerated.

Every effort should be made to ensure that employees treat each other with respect and dignity, avoiding any behaviour that might cause offence. All staff need to realise that their colleagues will have a wide range of views and feelings and diverse levels of sensitivity about certain issues that should be respected and must not be abused.

Early effective intervention

For bullying and harassment covered by statute, employers have a statutory defence if they can prove that all reasonable steps were taken to prevent harassment and bullying in the workplace. However, for a company to be able to rely on this defence, it must show that everything reasonably practicable was done to stop an act of bullying or harassment from taking place in the first place.

• Company policy

The first step towards ensuring this would be for a company policy on bullying and harassment in the workplace to be put in place. The document should outline the types of actions that would be viewed as bullying/harassment, while spelling out the consequences of these actions. There should be a point of contact within the company that employees can turn to if they believe that they are being bullied or harasses, as well as a clear path of action to follow.

• Company culture

It may also be useful to review the prevailing company culture, with a particular aim of establishing the existence and level of ‘banter’ (sexist, racist, homophobic etc) so that it can be dealt with effectively. Preventative measures designed to nip such behaviour in the bud may well include informal chats and team meetings to reinforce and explain official policy. Conversely, ignoring the issue and allowing any existing unacceptable behaviour to continue may run the risk of someone bringing a formal complaint and tribunal claim.

• Company processes

If a member of staff does come forward to report an incident of harassment or bullying, it is essential that their complaint receives sympathetic and prompt attention. It should go without saying that if the employer notices anything that could be construed as harassment or bullying in the workplace, early intervention to ‘nip it in the bud’ is highly recommended.

4 key actions for employers

• Have an awareness and understanding of the practical and legal reasons why the company must take proactive steps to tackle bullying and harassment in the workplace
  
• Obtain clear knowledge on the statutory definitions of harassment, including reasonable steps of defence
  
• Ensure the company has put in place a harassment and bullying policy which is well communicated to the entire workforce
  
• Follow the company disciplinary procedure to deal with any incidents of harassment or bullying at work and be consistent in how complaints are handled