This month’s blog is going to focus on the matter of ‘banter’. But before we get into banter it would be relevant to understand this in the context of bullying and harassment.
There is no set definition under the law for bullying. However it is perceived as persistent, offensive, intimidating and humiliating behaviour which is targeted at one or a group of individuals, thereby making them feel unwelcome or uncomfortable at their workplace and undermining their position. Hence it can be any unwanted behaviour or ‘banter’ which targets any one of the following: age, sex, religion or belief, pregnancy and maternity, marriage and civil partnership, gender reassignment, disability, race and sexual orientation.
Bullying itself is not against the law. Harassment however is unlawful under the Equality Act, 2010.
Under the law there are three types of harassment:
- Any unwanted conduct which results in creating an intimidating, hostile, degrading, humiliating or offensive work environment and/or violates the complainant’s dignity. This is usually linked to one of the protected characteristics other than pregnancy, maternity, civil partnership and marital status.
- Sexual harassment which is any unwanted conduct of a sexual nature
- Treating someone differently because they rejected or submitted to sexual harassment or harassment in relation to gender reassignment
Stalking is a form of harassment not covered by the Equality Act, 2010 but is conduct that is known to cause alarm or distress but not related to any protected characteristic.
Examples could be:
- Conversations about physical appearance or stereotypes – either direct or overheard
- Name calling as a friendly ‘pass’
- Gossip and rumour mongering, whether verbally, on social media or by text media
- Passing off a general remark as a ‘joke’ not specifically intended for anyone
- Denying an individual all or any training opportunities without clear business reasons
So what then is banter?
Banter is usually perceived by most workers as friendly chatter because there is an assumed level of rapport between colleagues. Sometimes however this can inadvertently slip into territory which can make a person feel uncomfortable. A complainant may initially choose to ignore this because of the underlying and assumed level of rapport or because ‘this is how it has always been around here’. When not addressed for a sustained period of time, this can prove to be offensive or humiliating.
Innocuous flirting with a colleague because there is an assumed level of rapport or camaraderie, could lead to a sexual harassment claim. Gossip, which could be considered by most as an innocuous
exchange of personal news about a colleague, could leave the latter feeling quite uncomfortable or offended. A comment meant as a casual ‘pass’ could also lead to discrimination claims. Sustained profanity could be termed ‘banter’ and result in an individual feeling offended.
As mentioned under the definition of harassment, it does not matter whether the person initiating the comment, gossip or banter intended to cause offence. Instead it is dependent on whether or not the recipient is left feeling offended.
Culture: it is the duty of the leadership team to promote and maintain a work environment which is free from harassment and bullying. Care must be taken to ensure staff and workers are treated, and treat others, with dignity and respect at all times.
Harnessing a culture of trust and openness ensures that any concerns around banter are nipped in the bud. Equally important is a culture of respect. Whilst the manner of showing respect could differ between individual cultures, every worker has an obligation to be sensitive to each other’s culture. Secondly, independent of culture, respect is being sensitive to a colleague’s personal or work situation and strictly avoiding anything which could be perceived as gossip or malicious rumour.
Training for Managers and the costs of an error
This is an ongoing process which is achieved not just through a one-time training session. Leaders must live and breath the expected norm from staff to keep banter at bay. The expectation around zero tolerance for anything which could be perceived as banter must percolate through your staff communication on a day to day basis. Such an approach mitigates risk and costly mistakes.
Harassment is a form of discrimination and therefore there is no statutory cap on compensation for claims. The award can be made against the employer or on a personal level against an individual. The 4 categories of compensation when a claimant alleges discrimination are:
- Compensation for financial losses
- Injury to feelings
- Personal injury award, if this is the case
- Interest
Policies and Procedures:
Any instance of banter leading to alleged instances of bullying and harassment must be dealt with as per procedures laid out in the Staff Handbook or the ACAS code of conduct, as applicable.
If you would like further advice then please get in touch with the local HR Dept office based in Tonbridge on 01732 622 209.
