There is an interesting development in the UK, with the rise of “workplace banter” as a defence to claims of harassment, bullying and discrimination (read the article here). As the article reports, the use of workplace banter as a justification for inappropriate workplace behaviour rose 44% last year.
It raises the question of what constitutes light-hearted banter, what constitutes inappropriate workplace behaviour, and whether employees are aware of the distinction.
The UK experience
In the UK, cases before the Employment Tribunal (the equivalent of the Fair Work Commission (“FWC”)) where workplace banter has been used to justify inappropriate workplace behaviour have included:
an employee of Indian heritage being called a “cheeky monkey”;
an employee who did not like football being teased and being told he must be “gay then”;
a 71-year-old plumber being called “half-dead Dave”; and
a female banker being referred to as a “bird” by her Line Manager.
Despite the increased use of workplace banter to justify inappropriate workplace behaviour, in these cases the Employment Tribunal rejected that these comments were merely workplace banter. The remarks constituted discrimination and harassment, and in some cases significant damages were awarded to the complainant.
The Australian experience
The FWC has similarly dealt with many cases of inappropriate workplace behaviour. While workplace banter has been used to justify inappropriate workplace behaviour, in Australia there are many cases where inappropriate workplace behaviour is sought to be justified on the basis that the workplace culture permitted some level of inappropriate behaviour. In other words, some level of inappropriate workplace behaviour was commonplace.
Cases where a workplace culture has been raised to justify inappropriate workplace behaviour have included cases where racial slurs such as “coconut” and “gook” have been used, memes of a sexual nature have been posted, and derogatory comments such as “dumbo” and “gumby” have been made. In these cases, the employees sought to justify this behaviour as light-hearted workplace banter that was intended to entertain and not offend.
In these cases, the FWC did not accepted the conduct was banter or acceptable workplace conduct even where the workplace culture fell considerably short of the standards expected in the workplace. However, in one case the FWC commented that, “There will, however, in most workplaces, remain the right to have a sense of humour. A workplace devoid of some humour and the occasional joke is, I consider, to be very sad.” The FWC specifically noted the period of time that most employees spend in the workplace and that light-hearted banter and the occasional joke will make the workplace most productive and fulfilling.
The message for employers
The rise of workplace banter as a justification to inappropriate behaviour in the UK suggests that some employees consider a certain level of inappropriate workplace behaviour is acceptable. The difficulty is that what one person considers light-hearted workplace banter, another person may find deeply offensive.
Harassment, bullying and discrimination are complex workplace issues for employs to navigate. Employers need to take appropriate steps to ensure their employees behave appropriately and know where the line is in relation to appropriate and inappropriate workplace behaviour. It is important that employers invest time educating employees about appropriate workplace behaviour by, for example, conducting a culture audit to identify issues, implementing policies and procedures, conducting workplace training and ensuring managers and senior employees “walk the talk”.
