Opinion: Why banter lawsuits are up 40% and what to do about it

By: Cavendish Employment Law

“‘Banter’ can be seen as discriminatory behaviour in the workplace. Earlier this year, The Financial Times reported that ‘banter’ lawsuit cases were up by more than 40%.

There is a fine line between ‘banter’ and discrimination however, there are some specific differences that mean you could win or lose the case if it goes to court.”

Discrimination is the unfair or prejudicial treatment of people and groups based on one or more of nine protected characteristics. It is illegal in the workplace.”

The 9 Protected Characteristics

race (which includes colour, nationality, ethnic origin and national origin),

age,

sex,

religion or belief,

disability,

sexual orientation, 

marital or civil partnership,

pregnancy and maternity, or

gender reassignment. 

These are known as the ‘nine protected characteristics’. 

“It is worth noting that whilst the term ‘banter’ may have raised its profile amongst employment tribunal cases recently, it appears that it is likely only to have a chance at being a successful defence against seemingly discriminatory remarks where:

• It is not about one of the nine protected characteristics, and

• you were not offended by it, and
• you have taken part in behaviour like it previously”.

“Any individual can be a victim of discrimination in the workplace. If you believe you have been a victim of discrimination or harassment at work it is illegal. Your employer can even be held responsible if the discrimination took place outside normal working hours but is still considered in the course of employment“.

What can businesses do to protect their employees without scaremongering?

• Organisations might need to consider establishing clear standards of practice to remove any element of improper behaviour and make clear that the workplace is an environment of respect and equality.
• Businesses should not adopt an “everyone thinks it’s a joke and takes part” attitude to normalise inappropriate behaviour. Instead, they should actively discourage banter and set clear boundaries and expectations for what is acceptable in the workplace.
• Listen to employees who are claiming they have been discriminated against. Record sessions and ask them to record instances where the discrimination has happened if it happens regularly.
• Create a trusting and relaxed workplace, where employees feel they can approach higher management with issues.
• According to HR Zone, banter in the workplace is a way to feel included and accepted amongst peers, diffuse tension, and develop relationships. However, banter can get out of hand and become negative, crossing that line into bullying and harassment.

Why is this relevant now?

• A recent study conducted by Ciphr found that 36% of UK adults and 79% of people working in an HR role said they’ve been discriminated against in the workplace.
• ‘Banter’ related employment lawsuits are becoming more common as we head into 2023 and, with that, more employers are seeking to incorporate corporate policies aimed at stemming it.”

Cavendish Law are experts in employment law and specialise in handling complex and high value claims on behalf of directors, executives, senior management and employees, particularly in the financial industry.