Cases involving workplace banter continue to be fertile ground for embarrassing employment tribunal cases and negative headlines. When one person's harmless fun can be another's bullying or harassment, it can be hard for employers to manage.
Risk area for employers
Last week, Stena Line Irish Sea Ferries hit the press when one of its former dock workers, Martin Sheil, was awarded £45,000 compensation after being dismissed for reacting to homophobic abuse. A Northern Irish tribunal found that Mr Sheil had been unfairly dismissed and had also been the victim of discrimination and harassment on the grounds of sexual orientation. As part of its decision, the tribunal found that Stena Line had "adopted a far too passive approach to unpleasant banter". The banter in question reportedly included quips such as "some people in here should come out of the closet" and derogatory references to Mr Sheil as a "fruit".
Clearly, some degree of banter in the workplace is to be expected and can help to build closer relationships between colleagues. But it is vital for employers to recognise that, in some cases, banter can cross the line from office camaraderie into something more damaging.
What the law says
Under the Equality Act 2010 (the "Act"), employees can bring claims of discrimination where they believe they have been treated differently or subjected to unwanted conduct related to certain protected characteristics, including gender, race and sexual orientation. Banter is one factor which is regularly cited in such claims, which carry potentially uncapped financial liability for employers. Even if the banter does not relate to any of the protected characteristics under the Act, employers may still find themselves at risk of bullying complaints and claims of constructive unfair dismissal from disgruntled employees. There is also the significant risk of negative publicity in the event that details of an employer's inappropriate 'banter culture' find their way into the press.
What can employers do to manage effectively?
Whilst it is important for employers to have robust equal opportunities and anti-bullying/harassment policies in place, the key is to ensure that such policies are clearly communicated to employees and enforced in practice. In the case of Mr Sheil, the tribunal noted that, although Stena Line had policies in place that were designed and intended to discourage discriminatory behaviour, they had not seen any evidence to show that active steps were taken to enforce these. With this in mind, employers would be wise to ensure:
- Employees are trained to understand their rights and responsibilities in relation to relevant policies. This training should be updated and refreshed on a regular basis.
- Both the policies and training include practical examples of unacceptable jokes and language that might be intended as banter but could actually amount to unlawful conduct.
- Employees are made aware of who they need to speak to in order to raise any issues and employers demonstrate that complaints will be taken seriously.
- Employees are aware of the consequences of overstepping the mark. Employees should be left under no illusions that any banter or conduct which is deemed to be unacceptable will result in disciplinary action.
A stark example of this can be seen in a video which was circulated online last week, showing Colin Fan, co-head of Deutsche Bank's investment banking division, issuing a warning to traders regarding boastful, indiscreet and vulgar communications. The warning was recorded in response to numerous stories surfacing in the press revealing a culture of inappropriate comments and banter amongst the bank's traders. The video is extremely direct and ends with the following message from Mr Fan "I need you to exercise good sense and sound judgement. Think carefully about what you say and how you say it. If not, it will have serious consequences for you personally". Whilst few employers would expect to find themselves under the same degree of public scrutiny as Deutsche Bank, the underlying principles of Mr Fan's message are ones which all employers would do well to stress to employees when discussing the issue of workplace banter.