We have had an incident in our factory which might be characterised as fighting, but was really a bit of pushing and shoving, after some banter that went too far. The protagonists have history; it is well known that they are always exchanging banter with each other and others. One of the two took offence when the other made what he thought was a light hearted comment geared towards his colleague’s wife, but which backfired on him and led to the ‘altercation’. We want to dismiss both but they are saying that it was not a fight. The verbal abuser has apologised and they are back to being friends. The manager admitted to knowing all about it and felt that is was a normal part of the workplace. He believes that it would not be fair to dismiss either or both.
Peter replies:
Most cases about banter arise when it is claimed that the banter has crossed the line from mutual joshing with a sense of fun, to harassment and/or discrimination. This case illustrates the problem of what might be described as a toxic workplace culture. Banter in one organisation may be classed as bullying in another. If the banter becomes derogatory or sexist/racist in nature then it is not harmless banter. If a manager does not take a distressed employee’s complaints seriously, it can be deemed that they have joined in with the accepted pattern of behaviour. Even if the banter does not fall into the category of discrimination there may be other adverse consequences such as constructive dismissal claims, bad publicity and poor morale and high turnover/absence.
It is simply unrealistic to attempt to ban workplace humour and to expect people to lose their sense of humour. People who constantly work with each other will naturally have banter; it is often what makes work enjoyable. The key is to make sure that the banter does not go too far to the extent that it becomes unacceptable to one or more, and this is down to individual judgement and perception. Managers need to act when someone expresses unhappiness or concern when they think the banter has gone too far. In order to minimise the risk of liability, you should ensure that you have clear policies regarding behaviour by employees, however policies are not enough.
What to Do
- Inform your entire management team of the difference between workplace banter that is deemed mutual and fun, rather than verbal harassment.
- Don’t accept excuses like, “It’s just a joke” or “We’ve always talked this way.”
- Be clear to everyone when matters become unacceptable and have structured conversation with anyone that has a tendency to take matters too far.
- If incidents happen as a result of banter gone too far act promptly, investigate carefully to verify facts, and don’t decide to ignore some evidence just because you want to resolve the case quickly.
- If you find an employee that has been harassing/bullying others, take appropriate steps to rectify the situation immediately.
Whilst it is important for employers to have robust equal opportunities and anti-bullying/harassment policies in place, the key is to ensure that such policies are clearly communicated to employees and enforced in practice so they become part of the fabric of the organisation. Consequently it is also wise to ensure:
- Employees are trained to understand their rights and responsibilities.
- Both the policies and training should include practical examples of unacceptable jokes and language.
- The message should be “We need you to exercise good sense and sound judgement. Think carefully about what you say and how you say it. If not, it may well have serious consequences for you personally”.
- You retain clear records of who attended, which provide ‘proof’.
Your disciplinary policy should contain a non-exhaustive list of conduct classed either as misconduct or gross misconduct. Grossly offensive behaviour or remarks will often be grounds for a fair dismissal, as will fighting. In this case this does not look like a fight and enforcing rules which have been widely ignored is a very poor basis for moving to dismissal. Final written warnings might be more appropriate.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
