Workplace Banter – The Potential Risks
The football season is only just upon us and already Gary Lineker is causing a stir. Lineker jested that it had been a “real hair-raising start to the season… unless of course you are Alan Shearer and Danny Murphy” (both of whom are not blessed in the hair department!). Although he later said it was a joke between friends and colleagues and neither pundit took offence, banter in the workplace can ultimately be very expensive both personally and for the business if a disgruntled individual takes offence and brings a claim.
Workplace “banter” and the potential risks:
It can form the basis of a discrimination claim if the comment or action is related to a protected characteristic.
It can still be unlawful even if the purpose was not to cause offence if the consequence was that it had that effect. This means that an employee raising the “It was just a joke” justification will not fly.
Even if the comment is not related to a discriminatory protection (as may be the case in relation to Mr Lineker), banter could still amount to a breach of other handbook policies such as an anti-bullying and harassment policy and may be deemed to be misconduct. Thus, a banterful employee may be subjected to an internal disciplinary process which could lead to disciplinary sanctions including dismissal in the most serious of cases.
An employer may want to take steps to avoid vicarious liability (as something done by the employee in the course of their employment is treated as having also been done by the employer). Such steps by an employer, to provide a defence to such a claim, may include regular training on bullying and having policies outlining these issues.
Posted on 09/05/2019 by Ortolan
