Rise in ‘banter’ employment tribunal cases

The number of employment tribunals claims relating to ‘banter’ in the workplace has increased by 45 per cent, according to research by specialist employment law firm GQ|Littler.

‘Banter’ has increasingly been invoked in employment tribunals as a justification for alleged discrimination and harassment, with 97 cases in 2021 compared to 67 in 2020.

What one employee might claim is ‘banter’ might actually be bullying or harassment, particularly if someone is subjected to discriminatory jokes on the basis of race, gender, nationality or sexual identity.

Harassment claims are particularly relevant territory for ‘banter’ cases.

Under the Equality Act 2010, unlawful harassment occurs where a person engages in unwanted conduct related to a relevant protected characteristic, and this has the purpose or effect of— (i) violating their dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Employers can use ‘banter’ as a justification to help them argue:

1. That the conduct wasn’t unwanted i.e. if the employee engaged in similar behaviour and jokes

2. That the behaviour was not connected to a protected characteristic

3. That the conduct didn’t violate their dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for them.

But GQ|Littler explained that the individual bringing the complaint does not need to have the ‘protected characteristic’ relevant to the conduct in order to be offended. For example, if you are wrongly assumed to have a certain characteristic, you can be harassed on that ground.