When Does Banter Stop Being Funny?

When does banter stop being funny?

Whilst it’s positive for a workplace to have a sense of humour, there comes a point when banter can simply be a cover for bad behaviour. In those instances, the risk to the employer and the manager is that the comments made could constitute harassment or form the basis for a discrimination claim.

Not all tasteless or inappropriate jokes will fall on the wrong side of the line. However, if they touch on a characteristic protected by equality legislation or are in some way sexual, there may be a problem.

Take nicknames, in particular – most of the time, using them is a bit of fun and helps a team to bond. On the other hand, case law tells us that if you call a wheelchair user ‘Ironside’, you’ll be liable for disability harassment. If you call one of the older members of the team ‘Gramps’ or ‘Yoda’, you may well be discriminating against them on grounds of their age, particularly if you’re making other comments about them being ‘old fashioned’ or ‘long in the tooth’.

You will have seen plenty of examples of this in everyday life. If you are a rugby fan, you may have heard England’s Joe Marler call a Welsh player, Samson Lee, “gypsy boy” on live television. Though this was played down as ‘banter’ by the Welsh coach (and Lee himself) despite Lee’s Traveller background, World Rugby’s disciplinary committee saw it differently. Finding that the comment was ‘unsporting and discriminatory’, the committee imposed on Marler a two-week match ban and a £20,000 fine, which Marler must pay to a suitable equality charity.

Equally, making sexual jokes in the workplace could amount to sexual harassment. It does not have to relate to the person making the complaint – you could have made a lewd remark about a female (or male) visitor’s figure or sent a sexual email around as a joke.

Essentially, anything you say which relates to someone’s race, age, religion, sex, sexual orientation, etc. could be the basis for a harassment claim if it creates a degrading, offensive, intimidating or hostile environment for the person making the complaint. This is regardless of whether you intended to offend them. It also doesn’t matter if the subject of the banter joins in or laughs, as this may just be their way of dealing with how uncomfortable they really feel.

As a manager, the best way to avoid being in this position is to educate staff on where the line is by operating anti-bullying and harassment training. Make it clear that certain behaviours are unacceptable and investigate any harassment complaints you receive from your staff. The failure to do this may see you and your employer liable for damages, which really is no laughing matter.

Sarah Owbridge is a paralegal at leading senior executive employment law firm BDBF LLP

For employment law advice contact info@bdbf.co.uk