John Howe & Co

An employment lawyer is warning that ‘banter’ between colleagues could see companies taken to tribunal if employees don’t see the funny side.

John Howe, partner at West Yorkshire-based John Howe & Co, is telling bosses to watch their mouths after a 44 per cent rise in the number of tribunals which cite ‘banter’ or ‘inappropriate workplace humour’ from 2020 to 2021.

While poorly received office banter may conjure images of David Brent - Ricky Gervais’s character in The Office – it seems that there are many workplaces that may be at risk of falling foul of the law.

Some tongue-in-check nicknames, common expressions and every day turns-of-phrase have been included in successful tribunal cases against employers.

Employees have won tens of thousands of pounds after taking offence to things like being called a ‘cheeky monkey’ or a ‘dinosaur’. In one case, a 71-year-old man given the nickname ‘half-dead Dave’ received a £25,000 pay-out for age-related discrimination.

For workplace banter to cross the legal line and be classed as harassment, it must include unwanted conduct related to one of the several protected characteristics as outlined in The Equality Act 2010. It must also have the purpose or effect of violating a person’s dignity, or create an intimidating, hostile, degrading, humiliating or offensive environment.

However, it seems if employees can ‘give it but not take it’ they may not have a case. In one example, it was proven that there was an office culture of ‘banter’ and the claimant did not have a case because he too had undertaken similar behaviour.

John Howe, partner at John Howe & Co, said: “While no one wants to work with robots and humour is important for workplace wellbeing – it builds rapport and acts as a stress-relief valve – it’s important to be careful not to use outdated phrases or single out any particular group or person.

“Some people might think this is being overly sensitive, but it is a natural progression of workplace professionalism, and being part of an inclusive and diverse society. We’ve moved on from racist, homophobic and sexist jokes, which were once commonplace in some industries.

“It’s important to note that protected characteristics remain protected at all times. For example, a female would be well within their rights to take offence to so-called banter about a male stereotype. And a heterosexual man can take offence to be being called ‘gay’ because he didn’t like football, as was included in one of the cases in 2020.

“Even commonplace phrases could land you in trouble if you continue to use them once a colleague has asked you to refrain. Barclays lost an employment tribunal after a manager continued to use the word ‘bird’ to describe women, even after repeated requests to stop. The judge ruled that the use of the word was plainly sexist.

“If you’re unsure whether you should crack a joke, just ask yourself how it would sound being repeated back to you and if you could justify it if you were called into a meeting with HR, or even in a courtroom.”

ENDS

NEWS RELEASE: ISSUED ON BEHALF OF John Howe & Co

CONTACT: Caroline Walker on 01325 363436

Notes to editors:

Established in 1994, John Howe & Co is a specialist and independent firm of solicitors. We offer a comprehensive range of legal advisory services to private individuals and businesses across many diverse sectors.