“But it was only banter”: What we can learn from the Greg Wallace case
As in the recent example of TV personality Greg Wallace, ’banter’ at work can cause major issues. Even matters purportedly said or done in years gone by can explode in the present. And emerging issues are not just problematic for the individual, but also potentially for those who employ or engage them.
With new legislation to stamp out work related sexual harassment, and the number of claims steadily increasing annually, we consider that favourite, well-worn, employment tribunal excuse “but it was only banter”.
What is banter?
Let’s first define banter. A dictionary would describe it as ‘playful teasing or light-hearted interaction between friends’. But what one person sees as harmless fun can be humiliating, hurtful, harassment to another.
When personal ‘banter’ is paraded in front of the rest of a team, or deliberately aimed at a particular individual to intimidate or belittle them, it crosses an important line. It has potentially become bullying, or harassment if it relates to a protected characteristic. Even if the person to whom it was directed brushes it off as a joke, someone else who witnesses it may report it.
Nobody wants a humour-free work environment. Work can – and should be – fun. But jokes or jibes about someone’s physical appearance or personal characteristics are always inadvisable.
The risks are real
Eye watering employment tribunal penalties can severely damage a business, particularly a small one. And, somewhat inversely proportional, the ‘instant justice’ publicly meted out – rightly or wrongly – by social networks and the media inflicts greater damage on large ones. Witness the problems created for the BBC in the Greg Wallace scenario.
You may be surprised that a fairly recent ‘banter’ case revolved around someone’s baldness. (Perhaps slightly more understandable when you appreciate that bald was followed up by a rather unsavoury word that we won’t repeat here). Widespread reference to one older employee as “Half Dead Dave” and another as a “menopausal dinosaur” were not considered funny by the recipients or, indeed, the employment tribunals that subsequently found them discriminatory.
Managers aren’t exempt
Sometimes it’s the manager who’s the problem. You may think it’s obvious that a manager sending a team member a text message saying “I need sex when I’m stressed” is highly unlikely to be well received. The employment tribunal that found it to be sexual harassment certainly wasn’t impressed.
Similarly, a young supermarket worker who faced frequent inappropriate observations about her underwear and colleagues’ desire to have sex with her, complained to her manager. The manager’s response was that she should regard it as a compliment! Her resignation, successfully claiming constructive unfair dismissal, ultimately cost the company over £50,000.
Occasionally, employment tribunals do recognise that – however inappropriate – a culture of workplace banter exists and is widely practiced by staff, but this is exceptional. Where the effect is targeted to violate dignity, humiliate, abuse managerial power, etc. tribunals will not consider this cultural banter. Equally, where an individual makes clear that cultural banter is resented and must stop, they will penalise organisations that allow it to continue.
What the surveys say
In a recent survey undertaken by lawyers Irwin Mitchell, over 30% of respondents reported they had suffered bullying or harassment dressed up as ‘banter’. Similarly, law firm Wright Hassall found that of 1026 people surveyed, a third did not believe jokes about a person could be bullying. A similar level didn’t think isolating people from meetings was bullying.
Over 50% didn’t consider shouting at work was bullying. And, last but by no means least, two thirds of respondents didn’t consider abrupt emails to be bullying.
If you surveyed your workforce today, what would your staff say?
The legal landscape is changing
Let’s return to that new legislation. Employers now have a proactive responsibility to prevent sexual harassment in the workplace. Full stop. Your employee handbook can feature gold standard equality and harassment policies. However, if they are not being lived and breathed by your staff – and particularly by your managers – then you may as well not have them.
On too many occasions, evidence to employment tribunals is the stock phrase “it was just banter”. The new legislation makes clear that will no longer be tolerated. Since October, every employer has a specific responsibility to prevent the sexual harassment of their staff. And that extends to everyone associated with the workplace and can include consultants, contractors, clients, customers, etc. The new government intends to extend the latest provisions further.
If you haven’t already done so, you need to act now. Among key aspects to consider:
- Risk assess your work environment. Banter is just one element to consider.
- Ensure you have strong, well understood, equality and bullying and harassment policies.
- Familiarise/train both managers and staff. And keep doing it. Every year.
- Treat complaints seriously. Deal with them confidentially and promptly.
- Monitor every aspect of the success (or failure) of your policies. And keep doing it.
How Moorepay can help
If you’re in a higher-risk sector like hospitality, leisure, health and care, education, or the voluntary sector, now’s the time to take a closer look at how you’re handling these issues. Risks may arise from customer interactions, vulnerable clients, children, or mental health situations.
We’re here to help you get ahead of the changes. First, we’ll jointly assess the risks presented by your current setup. Then, we’ll work together on strategies tailored to your organisation’s specific needs to ensure full compliance.
The focus will be on day-to-day management, such as how at risk your workplace is, how employees report harassment, how businesses monitor complaints of sexual harassment, and what training needs to be in place.
You can find out more about our services and how we can help right here!
