“It’s just banter!” You would struggle to find another three-word phrase that puts employment lawyers on edge quite as much.

While to many, it evokes a good-natured and harmless ribbing between mates, it can be startling just how easily workplace banter can turn into a big problem for an employer.

Type “banter” into any news site that tracks Employment Tribunal cases and the list of results will be enormous. In the past 12 months, no less than 75 Tribunal judgments have specifically referred to banter and that is without including the huge proportion of cases that have settled out of court, or those where a different term may have been used (“horseplay”, anyone?).

While nobody wants to be forced to play the role of the fun police, it is understandable why so many workplaces are wary of this type of behaviour.

The legal risk arises from harassment claims, derived from the Equality Act 2010. Harassment arises where unwanted workplace behaviour, relating to a protected characteristic, has the purpose or effect of violating a person’s dignity or creating an environment for them that is intimidating, hostile, degrading, humiliating or offensive.

There is also a parallel definition of sexual harassment, which covers behaviour which is sexual in nature whether or not it relates to a protected characteristic.

IMPORTANT POINTS

Tucked in among this lengthy definition are a couple of important points. The first is that an act constituting harassment does not need to be intentionally offensive: the legal definition looks at behaviour that has the effect of offending or humiliating someone, even if it does not also have the purpose of doing so.

It is also worth noting that the reverse applies too, so a remark that was intended to be offensive can still be grounds for a claim even if nobody was actually hurt by it at the time it was made.

The other major point to consider is that the target of an act of harassment does not need to be the same as the person who brings a claim, so employers may be liable towards workers who overhear comments that were intended to be private between others, or jokes which are not made about any person in particular.

ROOM FOR BANTER

Against this broad-reaching definition, then, is there room for banter as we know it to survive? After all, few would deny that (appropriate) banter can play a part in a healthy workplace. If nothing else, various studies have established that having fun at work can improve everything from productivity to engagement, leadership effectiveness, teamwork and attendance. The important part, though, is that this atmosphere of fun needs to apply to everyone.

From a HR standpoint, the issue with banter is not about it being edgy or “non-PC”, it is that it can be exclusionary. Reaping the benefits of a fun workplace will not be possible if not everybody gets to have fun on their own terms.

Rumours of the demise of workplace banter have been greatly exaggerated.”

Fortunately, you will be relieved to hear, rumours of the demise of workplace banter have been greatly exaggerated. Although it has become a dirty word, the cases of banter which cross our desks as lawyers are the egregious ones, those involving a corruption of the core concept. To put it another way, banter done right does not get a lot of attention, because everybody involved enjoys it and “person makes funny joke, widely appreciated” does not make for a good news headline.

EQUALITY ACT

Returning to the legal definition of harassment, it is easy to spot some of the gaps where acceptable banter can still thrive. For example, the Equality Act only prohibits conduct which is either related to a protected characteristic or which is sexual in nature.

Keep away from those topics, and harassment will not be a legal concern (though do still bear in mind that behaviour which is upsetting or inappropriate might still constitute workplace misconduct).

KNOW YOUR AUDIENCE

Perhaps even more obviously, for conduct to be harassment it must be “unwanted” – any conduct which is welcome or invited will not be unlawful. Of course, this does still come with an asterisk to say make sure that you know your audience – both the intended crowd and anyone who might overhear – but even that gets to the deeper point.

Ultimately, good banter is about community: both dishing out and receiving back (and making sure everyone gets a turn at both) and knowing the people and the forum well enough to know how a joke will be received. It is exceptionally rare that any banter which ticks these boxes will make it as far as a lawyer.

Chris Deeley is employment associate in the London office of law firm JMW Solicitors