It’s not unusual for a workplace to develop a culture whereby colleagues regularly joke with each other. The question is to what extent employers need to step in to prevent inappropriate behaviour leading to potential claims against the business. Small business owner managers may be reluctant to be seen as a killjoy stepping in to stop jokes amongst staff. However, a fine line can exist between a light-hearted atmosphere among a happy productive team and employees overstepping the mark and leaving the business open to claims.
Potential issues arising from office banter include:
- Allegations of bullying leading to internal complaints and claims for constructive dismissal
- Claims for discriminatory harassment under the Equality Act
- Claims that the employer is vicariously liable for harassment under the Protection from Harassment Act
The key to defending claims is to ensure that employees are clear that any workplace culture or office banter must not offend or isolate members of staff and stress that any jokes, nicknames or conversations must not relate to any protected characteristic (ie sex, race, age, disability, religion or belief, sexual orientation or gender reassignment). Further, the business must not just pay lip service to such a policy but actively investigate any complaints and take appropriate action. Managers must not stand by and tolerate clearly offensive conduct but take steps to prevent it.
It is important to remember that harassment under the Equality Act is expressly defined to include conduct that may not be intentional but nevertheless has the effect of harassing an individual. Harassment is defined as:
- Unwanted conduct
- That has the purpose or effect
- Of violating an employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
In deciding the effect of the conduct, a Tribunal will look at the circumstances of the case and the perception of the individual concerned before determining whether or not it was reasonable for the conduct to have that effect. An oversensitive employee might not succeed but if a reasonable person in those circumstances would be offended or humiliated, the case will be made out even when the team genuinely did not realise that their behaviour had that effect.
So what can employers do to protect themselves? The Equality Act gives employers a statutory defence if they have taken all reasonable steps to prevent their employees from harassing the individual. What is reasonable will of course depend on the circumstances and the size and resources available to the employer, but the following can go a long way to establishing a statutory defence:
- A clear and unambiguous policy on bullying and harassment setting out what is not considered acceptable in the workplace
- Making sure that the policy is widely disseminated and reinforced, for example in an induction process
- Reacting to any formal or informal complaints by thoroughly and promptly investigating allegations and taking appropriate disciplinary action against those found to have breached the policy
- Ensuring that managers who overhear or witness any potentially offensive conduct take steps to ensure it is not repeated
This would also go a long way to escaping vicarious liability under the Protection from Harassment Act and in defending a constructive dismissal claim. In Assamoi v Spirit Pub Company, the Employment Appeal Tribunal confirmed that an employee was not constructively dismissed where his manager had behaved badly toward him but the actions of more senior managers in upholding his grievance and taking steps to rectify the situation prevented the circumstances escalating into a state of affairs that justified the employee leaving.
Any employer facing a formal or informal complaint that an employee has been bullied or faces potentially discriminatory harassment from their colleagues would be well advised to seek help from a specialist employment lawyer to ensure that the complaint is handled in a way that minimises the risk of a claim against the business.
