“It was only a joke”…

March 6, 2013

 …but  it could cost UK business in excess of £292 billion this year…

Workplace Banter – tips to avoid bullying and harassment claims

Workplace banter sounds harmless enough, but it is in fact potentially the most serious of matters when it steps over the line, or is indeed perceived to have done so by those on the receiving end.

Bring together an increasingly diverse workforce, incorporating employees from many different cultures, religious backgrounds and encompassing all the other ‘protected characteristics’ identified in the Equality Act 2010, and consider the increased protection that this Act gives to these groups, and you will be risking, on a daily basis, a potential discrimination claim against you which could cripple your business.

No Change to Discrimination Laws

The process of reforming employment law which is gathering momentum this year, focuses almost exclusively on protecting employers from unfair dismissal claims, but offers no protection for employers in the event of discrimination claims.  Indeed, such claims can be made by employees from day one of their employment and there are no compensation limits, so this really needs to be taken seriously by employers. Not only do you need to ensure that you manage your employees in a non-discriminatory way, but, being vicariously liable for the behaviour of your employees towards each other, you must also ensure that everyone understands what is and what is not acceptable behaviour in the workplace.

The Worst Kind of Claim

We have worked with a number of employers over the years who have been faced with a claim for harassment from a member of staff who has claimed that a fellow employee has spoken to them or behaved in a way towards them that they believe to have been discriminatory.  Often the employers, as well as the person against whom the claim has been made, are incredulous that what they have seen as a harmless bit of banter, often meant affectionately, has been interpreted in this way.  In these cases, more often than not, the allegations have sown the seed of a major investigation, involving a number of other members of staff, all of whom have been drawn into an upsetting and prolonged examination of their behaviour in the workplace.  This has all but destroyed convivial working environments and ended in dismissals, resignations, and in several cases, costly tribunal claims.

Managing the Informal Working Environment

If we add to the mix referred to above, the informal working environment that many of us now enjoy, we find ourselves sitting on a time bomb, with a lethal combination of circumstances that could ignite at any time.  The truth is, however informal your working environment is, it cannot safely replicate the non-work environment and all employees need to have clear guidelines as to what is and what is not acceptable behaviour at work. So here are some tips to help you minimise the risk of that harmless remark turning into an uncontrollable monster…..

  • Make sure you have a clear Bullying and Harassment Policy that sets out the types of behaviour that are unacceptable at work, gives examples and makes clear what the sanctions will be for contravention of the company’s rules.  Make sure that your employees read this policy and confirm to you that they have done so.
  • A detailed Email, Internet and use of Social Media policy should also be in place spelling out in detail what is unacceptable behaviour.  Remember that employees may still have a claim against you for behaviour of colleagues towards them outside work, and this could be on or off line.
  • Set a clear example of how you expect your employees to behave by demonstrating this in your own behaviour.  Don’t tolerate the use of bad language or poor jokes in the workplace.  These may not be offensive to you, but could be to some of your employees.
  • Observe your employees behaviour at work.  If you see someone stepping close to the line, a quiet word in their ear will probably deal with the matter.  If you see this behaviour continue, then step in with something more formal, before it’s too late.
  • Similarly, if you see someone who looks uncomfortable, is quiet and doesn’t appear to be joining in with the group, take them aside for an informal chat to check that they are ok.  This may well reveal some issues they may have which can then be nipped in the bud.
  • Generally, keep reinforcing the message that you operate in an environment of mutual respect and consideration.  It is quite possible for people to work together in a relaxed and informal way, but they need to understand the boundaries, and you need to set them and maintain them on a regular basis.

You really will get more out of a workforce who feel supported and safe at work.

For further information and guidance, contact us.