Can office banter create an employment law issue for your business? It can but by following the advice in this article you can prevent it or stop it escalating into a legal problem.
Many employees view workplace or office banter as a bit of fun which livens up their day. It is commonplace in offices, retail locations, on factory floors and everywhere else employees work together. Most companies and organisation have a culture where colleagues regularly joke with each other and humour is regarded as healthy.
However, potential employment law issues can arise from office banter including:
- Claims for discriminatory harassment under the Equality Act
- Claims under the Protection from Harassment Act
- Allegations of bullying leading to internal complaints and claims for constructive dismissal
The question is, at what point does banter cross over the line and become inappropriate behaviour leading to an employment law issue?
In each case, it is up to a Tribunal to look at the specific circumstances and the perception of the individual involved before determining if it amounts to harassment or constructive dismissal.
An oversensitive employee might not succeed with their case. However, if the Tribunal think that a reasonable person would have felt harassed or offended, then the case will be upheld, even when those involved did not realise the effect of their behaviour. Also, unlike unfair dismissal awards, compensation for discrimination claims is completely uncapped in an Employment Tribunal, i.e. there is no maximum awards.
So how can you protect your business from legal issues caused office banter? The Equality Act 2010 gives employers a statutory defence if they have taken all reasonable steps to prevent their employees from harassing the individuals.
- A policy on bullying and harassment clearly setting out what is not considered acceptable in the workplace.
- A procedure in place to promptly investigate informal or formal complaints and take appropriate disciplinary action against those found to have breached the policy.
These should both be in your employee handbook. Your policy and procedure must be widely disseminated and reinforced through staff training and your induction process.
If your employee handbook needs a review or one of your employees has brought an informal or formal complaint about bullying or harassment, then we recommend that you contact an experienced solicitor to stop it escalating further.
Stephen Stewart at Else Solicitors has a wealth of experience in dealing with employment law issues. If you would like some support in dealing with any employment law issue then we recommend that you contact Stephen directly on 01283 526218 or e-mail him at firstname.lastname@example.org.
In this short article in our employment law issues series, we will cover:
- What Constitutes Harassment
- Employment Law and The Equality Act
- How to Stop Banter Becoming an Employment Law Issue
- Why Else
What Constitutes Harassment
Harassment is a form of discrimination under the Equality Act 2010. Harassment is defined as:
“Unwanted conduct that has the purpose or effect of violating an employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.”
It is important to note that it is the effect on the individual which determines if it is harassment rather than the purpose of those involved in the unwanted conduct. Under the Equality Act, harassment is expressly defined to include conduct that may not be intentional but nevertheless has the effect of harassing an individual.
Unwanted conduct could be:
- Spoken or written words or abuse
- Offensive emails, tweets or comments on social networking sites
- Images and graffiti
- Physical gestures
- Facial expressions
An employee does not need to have previously objected to something for it to be unwanted.
- Employee ‘A’ make a racist joke about black people
- Employee ‘B’ feels harassed because of this
- ‘B’ could potentially bring claims for discrimination related to race against both the employer (who has responsibility over ‘A’s actions) and ‘A’
Note: employee “B’ does not need to be black to bring such a claim. He/ she may feel that ‘A” has created an intimidating and hostile working environment which constitutes harassment under the Equality Act.
Employment Law and The Equality Act
Harassment is unlawful under the Equality Act if it is connected to one of the below things:
- Gender reassignment
- Religion or belief
- Sexual orientation
These are referred to as protected characteristics. The other two protected characteristics under the Equality Act 2010 are “marriage and civil partnership” and “pregnancy and maternity”.
Here are two examples of unlawful harassment which could escalate into legal problems:
- Susan is being teased by her male colleagues who make insulting comments such as “it’s better not talk to her right now as it must be her time of the month again”. Susan could have a claim for harassment related to sex.
- Some of Karl’s colleagues keep making jokes and comments about him being gay. They call him names and have e-mailed gay adult pictures to him. It does not matter if Karl is gay or not, either way Karl could have a claim for harassment related to his sexual orientation.
How to Stop Office Banter Becoming an Employment Law Issue
There are several things you can do to stop office banter escalating into an employment issue:
- Ensure your general conduct rules as well as grievance and equal opportunities policies are up to date. These should be in your employee handbook which is issued to all employees. If you have not updated your handbook for some years, now may be a good time to ask a solicitor to review it and make the necessary changes. It helps your employees and protects your business.
- Provide training for your managers and stress that they must be aware of and stay alert for any forms of harassment. Makes sure that managers who overhear or witness any potentially offensive conduct take steps to ensure it is not repeated. In addition to talking to the individuals involved, this could include introducing compulsory regular training programmes. If you take this approach, then you should keep a record of all attendees.
- Act promptly to rigorously investigate incidents of harassment and discipline offenders. Take legal advice at an early stage to minimise the risk of claims. These could arise from the victim or the offender- if they think they have been unfairly treated.
- If your business faces a claim arising out of bullying or harassment, your records need to show that your employees have received adequate training and that you have taken all reasonable steps to communicate to them what constitutes unacceptable behaviour. This includes your employee handbook being issued, induction process and any training.
You do not need to stop your workforce enjoying a bit of friendly banter and the first two steps, properly done, should stop it going over the line. If it does though or you are unsure if your employee handbook and training is right, then we highly recommend that you talk to an experienced solicitor.
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You will discover that we are different to other legal firms. We will help you sort out your situation and then look at other ways that we can add value to your company. This could include introducing you to new customers or suppliers in our extensive network or offering you some new insight into your market or your business.
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