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Workplace banter may be dismissed by some as innocuous but the recent press coverage of the Yorkshire County Cricket Club case shows that this is a risky approach to take.

If banter goes too far it can amount to unlawful discrimination or harassment under the Equality Act 2010. Nobody wants a workforce full of robots and having personality is important, particularly in service industries such as leisure and tourism. But do your employees know where to draw the line? 

Can banter ever be a defence to harassment?

In Evans v Xactly Corporation the Employment Appeal Tribunal (EAT) held that calling a colleague a "fat ginger pikey" did not amount to harassment. The Claimant was sensitive about his weight and had strong links with the traveller community. The tribunal found that although the comment was potentially discriminatory it was made in the context of a workplace culture of good-natured jibing and teasing among competitive staff. The Claimant was an active participant in this culture of inappropriate comments and behaviour and seemed happy with the environment in which he found himself. There was also evidence that at the time the remark was made the Claimant did not take exception to it.  

The tribunal found, and the EAT agreed, that the treatment did not satisfy the definition of harassment in the Equality Act 2010 and therefore the claim did not succeed. However, this really was very fact specific and participation in banter will rarely get a company off the hook. 

When banter goes too far

Sometimes the comments will cross the line and employers should note that just because banter has been standard for many years does not always mean that it will be acceptable. 

In Smith v Renrod, the Claimant claimed that she had been sexually harassed by her manager. The tribunal found that there was a culture of sexual banter and sexual behaviour in the workplace which both the Claimant and her manager actively participated in. However, it found that comments made by her manager went too far and was unwanted conduct. The tribunal took into account that it would be harder for the Claimant to deal with and complain about the behaviour of her manager than that of her other colleagues. 

Sometimes an employee might have been taking part in the banter as a coping strategy to cope with a difficult situation. This was demonstrated in the EAT case of Munchkins Restaurant Ltd and another v Karmazyn and others. The Claimants were waitresses who worked for Munchkins Restaurant Ltd, which was run by the 73-year old controlling shareholder, Mr Moss. The Claimants were all migrant workers from Europe with relatively short periods of service. They alleged that throughout their employment they were made to wear short skirts and subjected to talk of a sexual nature by Mr Moss. They alleged that Mr Moss regularly asked them questions about their sex lives, and they sometimes asked him questions about his love life as they found that this made him easier to handle.

The EAT commented that putting up with harassment does not make it welcome. The first instance tribunal had been entitled to accept the evidence of the Claimants that this was a tactic used to divert attention away from their own sex lives. It was relevant that the Claimants were migrant workers, with no certainty of continued employment, who were under financial and sometimes parental pressure.

How can employers reduce the risk of discrimination and harassment claims?

Employers will be conscious of their workplace culture. Most employers have policies and provide training for staff on equality and diversity. The decision earlier this year in Allay (UK) Ltd v Gehlen highlights the importance of ensuring that training is effective.

In Allay, the Claimant was subjected to racist comments at work. His former employer's defence that it had taken all reasonable steps to prevent workplace harassment failed. The employer had an equal opportunities policy and an anti-bullying and harassment procedure. All the employees concerned had received equality and diversity training and bullying and harassment training about 2 years before the time of the allegations.

The EAT agreed with the first instance tribunal that the training was stale and no longer effective to prevent harassment, and there were further reasonable steps that the employer should have taken, such as refreshing the training. The EAT observed that it was relevant to consider what happened in practice, and the fact that employees have attended anti-harassment training but have not understood it, or have chosen to ignore it, may be relevant. If managers become aware that, despite the training, employees are continuing to engage in harassment, this may "serve as notification to the employer that they need to renew or refresh the training".

The case is a warning to employers that equality and diversity training should not be a tick box exercise. It needs to be meaningful and refreshed on a regular basis. The above cases are expensive to defend, take up serious amounts of management time, risk high-value, unlimited awards of damages and create adverse publicity, together with recruitment and retention issues. If your organisation would benefit from some training in this area please get in touch.