News & Insights: Employment

What’s in a word?

7 November 2023

Must we ban workplace banter?

Director, Seamus McGranaghan, had the following article published in the Irish News this week and recently spoke at Legal Island’s Annual Review of Employment Law Conference in Belfast.

As employees begin to look forward to Christmas parties with colleagues, the banter that goes with the festive season is usually taken as part and parcel of a good festive night out. According to the Oxford Dictionary, ‘banter’ is best described as ‘the playful and friendly exchange of teasing remarks.’
We all have experienced workplace banter at some stage in our career, either directly or indirectly. This could have been a joke about what someone was wearing, a project they are working on, the outcome of a sporting event, or what happened at the weekend.
Small talk and light-hearted conversations are undoubtedly an important part of day-to-day life in the workplace. A spark of professional humour can positively impact company culture and help to strengthen workplace relationships, kick-start innovation, improve team contributions and collaboration.
There is however a fine line between good humour and bad banter, including if the joke is related to protected characteristics, for example sex, pregnancy, religious belief, age, sexual orientation, or if the joke is repeated multiple times. What one employee thinks is workplace banter, another may see as bullying, harassing and discriminative. This creates a grey area due to the banter becoming subjective to the employee who is at the focus of it.

Many business owners may find it difficult to distinguish between regular workplace banter and legal verbal harassment. Employers can be held responsible under anti-discrimination law for any unlawful harassment that their employees commit in the workplace and there have been significant awards made within the courts and tribunals for unfair constructive dismissal and harassment. Responses such as “I was only joking” or “it was only a bit of banter” will do little to provide a legal defence in the event of a claim.
Research shows that women and those working in the public sector are more exposed to workplace bullying in Northern Ireland. Statistics released by NISRA in June this year found that around 1 in 10 employees in Northern Ireland reported that they had been bullied or harassed at least once in the last 12 months.
While this is lower than in the UK at 16%, it is still a concerning statistic. Female employees at 14% were more likely to report having been bullied or harassed at least once in the last 12 months, compared to male employees (10%), with a higher proportion of employees in the public sector (15%) reporting that they had been bullied or harassed more than employees in the private sector (11%).
Everyone has the right to work in an inclusive workplace, an environment free from unacceptable behaviours, and employers need to ensure that their employees are aware of the standards expected of them. In order to achieve this, businesses need to have in place comprehensive policies on equality and diversity, anti-harassment and bullying that are reflective of Northern Ireland’s anti-discrimination legislation.
However, as the case law demonstrates, it is not enough to just have policies in place. They must be kept up to date and reviewed regularly, with all employees being made aware of the policies that are in place and the potential consequences of breaching them.
Employers must train managers specifically on how to deal with claims of bullying and harassment and this training should wrap around the employer’s organisation and be integrated into the culture of the workplace.
Complaints must be taken seriously and cannot be ignored and whether this year’s Christmas party is in or out of the office, it should be treated as an extension of the workplace with both employers and employees conducting themselves appropriately.
Dismissing claims adds to the perception of them being workplace banter, which in turn could leave an employer in a difficult situation. If an employee is found to be harassing another employee through behaviours that exceed any kind of reasonable banter, take appropriate legal steps to rectify the situation immediately. Demanding a zero-tolerance harassment policy in your workplace is the only course to take.

Should you have any employment queries please contact the Employment Team at O’Reilly Stewart Solicitors. Mr Seamus McGranaghan can be contacted by email or Tel: 028 9032 1000.

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