This reference paper explores the legislation and good practice and illustrates how banter and when banter becomes abuse.  

Introduction

The law and any employer’s policy do not seek to prevent laughter and joviality but they do require us to think about how we talk, act, or behave around others and ensure we do so with respect.

Although it might seem strange; joking and banter in the workplace should be regarded as a serious subject. There can be damaging consequences in the workplace if the context and legal position is not appreciated by everyone and the boundary between joking and harassment is over stepped.

On a positive note, there is no intention that the workplace should be sterile, void of laughter or good working relationships. We spend a third of our lives at work and we all have the expectation that it should be a positive place to be.

This reference document covers:-

1. The context and summary of the law
2. Assessing/Managing Banter-recent cases as reference points
3. Learning points in more detail
4. Six golden rules
5. Five key action points for modern employers
6. Sources of further advice and information

Context and the Law

In 2024, 57 Employment Tribunal claims were brought over workplace “banter” – more than one per week. Facing a claim can be costly, time-consuming, and damaging to your company’s reputation. Even if things don’t escalate this far, inappropriate banter can trigger grievances, drain HR resources, and lead to resignations – all of which disrupt your business and hit your bottom line

The law has plenty of grey areas. Phrases such as ‘reasonable‘ and ‘appropriate‘ can be interpreted in many ways, which means that context and circumstance can be everything in some cases. The grey area between workplace banter and bullying or harassment is the kind employers and employees are to be often concerned about. It’s rare, but a worst-case scenario could be a high-spirited exchange between colleagues taken out of context by another and ending up as a harassment claim.

The Equality Act 2010 allows employees to bring claims of discrimination and harassment against their employer in circumstances where they have been on the receiving end of, or even have simply overheard, “banter” which they consider has overstepped the mark. And under the Workers Protection Act 2023, which came into force in October 2024, businesses must take reasonable steps to prevent sexual harassment, which is often passed off as banter

The issue of overhearing banter is particularly an issue in large open workplaces, such as offices, classrooms, or factory floors. If a claim is successful, it can result in a big bill for the employer, as well as reputational damage.

Assessing/Managing the banter – recent cases as reference points

The crucial point to be aware of is that the effect of discrimination and harassment is assessed subjectively, i.e. from the claimant’s point of view. Just because one person thinks a certain remark is hilarious and clearly only intended as a joke, it doesn’t mean that everyone does. Any individual who heard the remark and found it offensive might bring a claim against their employer, and in the eyes of the law it is only their view that matters.

In the case of Mrozinski v Q Medical Technologies Ltd ET Case No. 1801217/14, the claimant accused her line manager of six acts of harassment. During the case, evidence was presented to suggest that the claimant had found four of these acts humorous, so the tribunal found that these four acts did not constitute harassment. However, two other acts, including a suggestion by the claimant’s line manager that she should dress seductively for a client meeting in order to secure business, made the claimant uncomfortable and embarrassed, and so was found to constitute harassment. An award of £2,000 for injury to feelings was made. You should note that in this case, as in many others, it did not matter that the claimant had not previously taken issue with her line manager’s conduct.

You should also be aware that, even if you can show that another individual in the same situation would have found the remarks funny rather than offensive, this will not help your case. This is shown from Keenan v Benugo Ltd ET Case No. 2203590/12 where the civil partner of a gay employee was asked whether he had come to see his “husband or wife or whatever he is“. Another gay manager at the organisation gave evidence to say that he would not have found this question offensive, but this was held to be irrelevant; the remark had offended the claimant and therefore an award of £1,500 was made in the claimant’s favour.

It may be thought that a certain individual is considered to have a strong character, and so can “take” banter in a way that a more vulnerable person cannot. However, this is a dangerous assumption to make. In Bahra v Chief Constable of Bedfordshire Police ET Case No: 1201460/12, a police officer endured race discrimination over an extended period of time and, due to his “strong character”, had not raised complaints until much later than other less robust employees’ person probably would have done.

The tribunal held that his strength of character would not result in lower compensation, rather it simply meant that he had endured the injury for longer. He was awarded £30,000.

Conversely, in most workplaces there may be some particularly vulnerable employees who will suffer more extreme injury as a result of banter than the average person would. If successful in their claim, the employer will nonetheless be liable for the full extent of that person’s injury, no matter whether it is beyond the expected or not.

Clearly the existence of banter in the workplace can be dangerous for employers. It is therefore advisable to have clear anti-harassment and equal opportunities policies in place, and to ensure that these policies are communicated clearly to employees.

Employers should train their employees about their obligations under the policies, and as part of this training should consider giving examples of banter which would be considered unacceptable.

As a final point, employers should ensure that they are extremely direct with employees about the potential consequences of engaging in banter that oversteps the mark.