Banter - What it means.
What obligations do employers and employees have with regard to conduct and behaviour in the workplace? What does the law say?
"Banter" is a colloquialism often used to refer to what people consider to be good natured teasing in the workplace, that they perceive or allege to be harmless fun rather than malicious or discriminatory.
What is harmless banter and what is not, is very subjective and divides opinion.
A bit of fun or discriminatory
The new Equality Act does not distinguish between so-called banter and discriminatory conduct or harassment on the grounds of a protected characteristic - e.g. gender, nationality or sexual orientation. Drawing a line is legally impossible.
Potentially any comment made as "a bit of fun" but relating to a protected characteristics could potentially amount to discriminatory conduct, specifically harassment, if an individual is offended by them.
For the purposes of discrimination law, harassment occurs when an individual engages in unwanted conduct which has the purpose or effect of violating someone's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for another individual. It is important to note that under the Equality Act the individual who is offended need not actually have the protected characteristic of be the subject of the unwanted conduct - for example a male cameraman could have brought a complaint about the comments made by Andy Gray if he was offended by them.
Importantly, the test as to whether the conduct has the required "purpose or effect" is a subjective one - it is the perception of the individual that counts. There is then a balancing act as an objective assessment will then be made to assess whether it was reasonable for the conduct to have had that effect of violating the individual's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
The purpose of the objective test is to protect against claims from hyper-sensitive claimants - effectively creating a test for what will be deemed to be inoffensive banter.
Bringing about a claim
Importantly, there is no need for someone to complain that any conduct was unwanted or offended them before bringing a claim. The courts have commented that this would allow would-be harassers to "test the water" with impunity. While a one-off incident could create liability; conversely the fact that an individual has put up with conduct for years does not mean that they waive any right to bring a claim.
Additionally claims can be brought by those who seem to actively participate in conduct but then allege that this was a coping strategy.
However, if conduct is not related to a protected characteristic, for example if it relates to someone's weight, then the Equality Act does not apply. The Protection from Harassment Act offers some protection, however claims under this act are evidentially difficult to prove. Employees who do not have protection under the Equality Act more commonly resign and claim constructive dismissal.
What steps should employers take?
In any event, being treated with dignity and respect at work should be the least that all employees can expect. Making derogatory comments - irrespective of whether they could create legal liability or otherwise - is not doing so.
Employers should promote and champion high standards of conduct and behaviour from the top down - the best way of dealing with inappropriate conduct is to stop it happening in the first place. In case it does still happen, employees should be encouraged to feel empowered to tell people that their conduct is not welcome, whether it is directed at them or not.
Equally, employees need to be reassured that they can count on the support of their manager or HR if they do not feel comfortable approaching the individual directly. Clear policies providing clear guidance and a commitment from the employer to take action are essential; as is the need for employers to then act decisively and fairly.
Promoting dignity and respect
While a difficult area, allowing employees to report issues anonymously or confidentially - particularly if in relation to senior employees, can be effective and should be considered if organisations have issues regarding inappropriate conduct in their workplace.
Clear messages and communications about the standard of conduct expected are essential. Where possible training and personal development should be provided to support employees - especially managers.
Huge strides forward have been made in recent years to ensure employees are treated with dignity and respect at work. However as Messrs Gray and Keys' conduct has highlighted; complacency is not an option.