When does workplace banter become bullying?

This article contains language and subject matter that some may find upsetting.

Workplace banter may be dismissed by some as innocuous, but it can be a fine line between seemingly innocent camaraderie and bullying and harassment. 

The financial cost to an employer can be considerable, as demonstrated recently in Fleming v McGill Facilities Management. 

The claimant was referred to as a "dyke" when she asked a male colleague if she would be sitting near a female colleague (employees were told that they should sit "boy-girl-boy-girl" in the office). 

She was upset, embarrassed and dreaded going to work. She complained, and her employer said it was workplace banter. She resigned after being told that many people at the company knew of the matter. 

The tribunal ruled that she had been harassed and forced out of her job. It ordered the company to pay her £15,406 in compensation.

Office banter is common to most workplaces, but there is a distinction to be made between the positive effect of bonding and banter that slips into offensive territory. 

Just because banter has been standard for many years does not always mean that it will be acceptable. An employee might even initiate banter as a coping strategy to cope with a difficult situation.

In Munchkins Restaurant Ltd and another v Karmazyn and others, Karmazyn and three other claimants were waitresses who worked for Munchkins Restaurant, which was run by Mr Moss. 

The claimants were all migrant workers from Europe. They alleged that throughout their employment they were made to wear short skirts and subjected to talk of a sexual nature by Moss. 

They alleged that he regularly asked them questions about their sex lives, and they sometimes asked him questions about his love life as they found that this made him easier to handle.

The Employment Appeal Tribunal (EAT) commented that putting up with harassment does not make it welcome and accepted the evidence of the claimants that this was a tactic used to divert attention away from their own sex lives. 

The claimants had put up with allegedly "intolerable" conduct day after day for several years. 

Regard was also given to the fact that these were migrant workers, with no certainty of continued employment, who were under financial pressure.

In Smith v Renrod, the claimant – who was employed as a sales executive in a car dealership – claimed that she had been sexually harassed by her manager. 

The tribunal found that there was a culture of sexual banter and sexual behaviour in the workplace, which both the claimant and her manager actively participated in. 

However, it found that comments made by her manager – for example, he said he had not heard what she was saying because he was "thinking about picking you up and f****** you on the desk" – and his attempts to kiss her went too far and were unwanted conduct. 

The tribunal found that it would be harder for the claimant to deal with and complain about the behaviour of her manager than that of her other colleagues.

It also noted that where a culture of sexual banter exists in a male-dominated industry, a female employee may feel compelled to join in with conduct that they would otherwise find demeaning.

The context in which the comments are made will be key. In Evans v Xactly Corporation, for example, the EAT held that calling a colleague a "fat ginger pikey" did not amount to harassment. 

Evans was a sales representative for just under a year when he was dismissed for poor performance. He then brought a number of claims, including a harassment claim on the grounds that he had been called a "fat ginger pikey" on at least one occasion. 

Evans was sensitive about his weight, and had strong links with the traveller community.

The EAT found that although the comment was potentially discriminatory, it was made in the context of an office culture of good-natured jibing and teasing among competitive salespeople. 

Evans was an active participant in this culture of inappropriate comments and behaviour and seemed happy with the environment in which he found himself.

The EAT found that the treatment did not satisfy the definition of harassment in the Equality Act 2010 and therefore Evans’s claim failed.

Although on the face of it calling someone a "fat ginger pikey" may seem to amount to harassment, it will depend on the context in which such a comment is made.

Here, the office culture was such that a comment like this constituted good-humoured banter.

In order to foster a happy working environment and to avoid discrimination claims, it’s essential for employers to have clear policies on bullying and harassment, equality, diversity and inclusion. 

It will also be important to put training in place to ensure that staff are aware of these policies.

Out of date policies and training also pose a risk. 

In Allay (UK) Ltd v Gehlen, the claimant – who describes himself as being "of Indian origin" – was employed by Allay (UK) from October 2016 until his dismissal on 15 September 2017. 

He complained, after his dismissal, that he had been subjected to racial harassment by a fellow employee. The employer undertook an investigation, which determined that racist comments had been made. 

The claimant brought proceedings in the employment tribunal for direct race discrimination and harassment related to race.

The tribunal found that one of the claimant’s colleagues and two managers were aware of the racist comments, but no action was taken.

It found that the employer had an equal opportunity policy and an anti-bullying and harassment procedure, and that all the employees concerned had received equality and diversity training and bullying and harassment training at the beginning of 2015. 

However, it disagreed that the employer had taken all reasonable steps to prevent the harassment, holding that the training was clearly "stale" and that a reasonable step for the employer to have taken would have been to refresh the training. 

On appeal, the EAT agreed, holding that the training was no longer effective to prevent harassment.

John Turnbull is employment partner at Trowers & Hamlins.