Where Does Workplace Banter End and Harassment Begin?: Employer Sued for Asking About Sex Fantasy

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Photo Credits - Alexander Pemberton via Unsplash

Workplace banter has become increasingly normalised, often in the form of light-hearted exchanges and playful teasing that contribute to a positive working environment.

However, a recent case related to this poses the question: Where does workplace banter end, and harassment begin?

Workplace Banter: A Double-Edged Sword

Workplace banter is often thought of as a positive aspect of office culture, fostering camaraderie and team spirit. It is seen as a natural byproduct of employees working closely together, forming friendships, and engaging in playful interactions. The line between acceptable banter and potentially harmful behaviour, however, is becoming increasingly blurred.

READ: 40% Employees Feel Workplace Banter is Only Appropriate When It’s Light-Hearted

The use of ‘workplace banter’ has been used as a defence mechanism by employers facing claims of harassment under the Equality Act 2010. This poses a significant challenge as employers seek to navigate the delicate balance between encouraging a positive work environment and preventing harmful conduct.

Work Banter: The Claim and Its Implications

In a recent case, an employee sued their employer for asking about their sex fantasy during a team meeting. This provocative incident has sparked a legal battle, raising questions about the appropriateness of certain comments in the workplace.

The employee claims that the manager’s question about celebrities involved in a sex fantasy, framed as a ‘manwich’—a term blending ‘man’ and ‘sandwich’—crossed the line from workplace banter into harassment. The employee felt that the question, posed during a team meeting, violated their dignity and created an uncomfortable environment. 

This case highlights employers’ challenges in distinguishing between light-hearted banter and conduct that can be perceived as invasive or offensive.

Workplace Banter vs Harassment: Legal Perspectives

Under section 26 of the Equality Act 2010, harassment is defined as unwanted conduct related to a protected characteristic or of a sexual nature that violates an individual’s dignity or creates an offensive environment. 

Employers often lean on the ‘it was just banter’ defence, arguing that the conduct is harmless, consensual, and within the bounds of a positive workplace culture.

A landmark case that exemplifies the successful use of the ‘banter defence’ is Evans v Xactly Corporation Ltd. In this case, a wider culture of office banter, including teasing, contributed to the tribunal’s decision. The employee had engaged in similar banter in the workplace, leading the tribunal to conclude that the comments about the employee could not reasonably be considered harassment.

However, not all cases support the ‘banter defence.’ Instances such as Austin v Samuel Grant (North East) Ltd and Robson v Clarke’s Mechanical Ltd highlight the unsuccessful use of this defence. 

In these cases, the Employment Tribunal upheld claims of harassment based on sexual orientation and age, demonstrating that context matters and the ‘it was just workplace banter’ argument may not always hold.

For a comprehensive guide on sexual harassment at work, visit the Redmans Solicitors guide here.

Navigating the Thin Line: Protecting Employers and Employees

The increasing number of claims related to work banter underscores the need for employers to tread carefully. To safeguard against the dangers of bullying or banter as well as harassment or banter, employers should consider implementing several protective measures:

  • Clear Communication of Standards:

Ensure that all staff are aware of the expected standards of behaviour in the workplace and not offer inappropriate banter.

  • Robust Policies:

Develop and maintain robust policies on equality and diversity, anti-harassment, and bullying.

  • Regular Training:

Conduct regular training sessions to keep staff informed about workplace policies and acceptable conduct.

  • Swift Action:

Take immediate and appropriate action when made aware, formally or informally, of potential instances of discriminatory or harassing behaviour.

READ: EU Court Rules Public Authorities Can Ban the Hijab in the Workplace

Conclusion

The blurred line between workplace banter and harassment presents a significant challenge for employers. As the legal landscape evolves, employers must proactively address these issues to foster a positive work environment while ensuring the protection and well-being of their employees. 

Striking the right balance requires a nuanced understanding of workplace dynamics and a commitment to creating a culture that thrives on respectful communication rather than ‘banter at the workplace.’

If you require advice or guidance on employment law matters, such as harassment or bullying, head to the Redmans website. To get in touch with our team of expert employment lawyers, click here

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