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Where is the line between banter and discrimination?

Good-natured teasing or 'banter' at work can create camaraderie between colleagues and help to release pressure if the nature of the work is stressful or the workload is higher than usual. But, when it goes wrong, it can lead to claims of harassment and discrimination that damage the reputation of your business and result in uncapped compensation payments.

Anca Lacatus, a junior banker at Barclays bank, claimed direct sex discrimination against her boss, James Kinghorn, for repeatedly using the expression 'birds' in the workplace. She objected the first time he used it, but he continued in what the judge described as a 'rather puerile attempt to be ironic'. He would add 'do not report me to HR'. The judge said that the language used was derogatory and 'plainly sexist'.

Although Ms Lacatus had not immediately raised the issue as a grievance and in that sense let it continue, this was found to be because Ms Lacatus was junior and did not want to do so for fear of damage to her career. She succeeded in her claim of direct sex discrimination

The case highlights that jokes with no malicious intent can constitute discrimination, even if no strong objection is made. This covers situations where employees, given their position, are too afraid to call out the behaviour.

So, what can employers do?

Standards

Ensure that employees are aware of the standards that you expect. Make it clear that jokes and banter that relate to a protected characteristic can amount to discrimination or harassment.

Promote

There are many reasons to promote a positive, inclusive working environment, and to take steps to prevent discrimination and harassment by your employees. As well as the clear benefits to individual employees, it can help demonstrate a 'reasonable steps' defence if allegations are made. You will be liable for discrimination or harassment by your employees if this occurs ‘in the course of employment’, even if it is done without your knowledge or approval, unless you can show that you took reasonable steps to prevent employees from committing a particular discriminatory act or committing such acts in general.

Policies

Have robust policies on equality and diversity, anti-harassment and bullying as well as e-mail, internet, and social media. Keep policies up to date and review them regularly. Make all employees aware of policies and the potential consequences of breaching them. Manage grievances in line with policies, handle complaints effectively and take disciplinary action where appropriate.

Train

Provide equality and diversity training for the workforce, and specific training for managers and supervisors in equal opportunities and harassment issues, including examples of what might amount to harassment or discrimination).

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