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Office banter is often seen as “just a bit of fun”. It can liven up your day and many see it as a sign of a healthy office culture. However, employment lawyers know that banter can all too easily cross the line and become bullying or unlawful discrimination.
For example, in Dove v Brown & Newirth Ltd, the employee was successful in his age discrimination claim when more junior colleagues took to calling him “gramps”. Meanwhile, in Oteomewo v Carphone Warehouse Ltd, a manager was successful in his claim for sexual orientation discrimination when two employees altered his Facebook profile to declare he had “finally come out of the closet”, even though the manager was not gay, and the two colleagues knew this.
Unlawful harassment applies where a joke creates an intimidating, hostile, degrading, humiliating or offensive environment for an employee and is based on a ‘protected characteristic’. ‘Protected characteristics’ include age, sex, disability, race, religion, sexual orientation, gender reassignment, marriage or pregnancy.
It is important to note that discrimination protections for workers extend from one-off comments to offensive behaviour occurring over a long period of time. Furthermore, the excuse that “it was just a bit of fun” will not impress a judge in the employment tribunal. It doesn’t matter whether the offence was intended or not, what matters is the perception of the victim, and this will depend on the circumstances of each case.
Employees can bring a harassment claim even if the behaviour is not directed at them, but at a colleague. They need not even possess the protected characteristic in question, for example, if they are wrongly assumed to follow a certain religion or have a particular disability.
Employers should also note that badly-handled complaints of bullying or harassment can also lead to claims of constructive unfair dismissal in serious cases. Even if a claim fails, the last thing an employer wants is lengthy, expensive and reputationally-damaging legal action.