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Is your workplace ‘banter’ at risk of turning into a potential claim?

We all know that colleagues regularly joke around with each other and this isn’t unusual at all; but when are employers expected to step in, to prevent inappropriate behaviour leading to claims against the business?

Many small business owners are reluctant to stepping in, as they don’t want to be seen as a killjoy stopping jokes amongst their staff. However, it’s better to step in earlier rather than later as there’s an extremely fine line between a happy team and employees who overstep the mark and leave the business open to claims.

What kind of issues could arise from harmless banter you ask? Here’s just a few:

  • Allegations of bullying which may lead to internal complaints and claims;
  • Claims for discriminatory harassment under the Equality Act; or
  • Claims that the employer is liable for the harassment under the Protection from Harassment Act.

So, it’s better to step in before these issues arise and there’s many ways of doing this. If you ensure that employees are clear that all workplace/office ‘banter’ must not offend or make a member of staff feel isolated and no jokes relate to any of the protected characteristics; you can ensure you are a step in the right direction.

The best way to do this is to have a policy in place, you should also investigate any complaints that are made and take appropriate action. As the business owner, you must ensure that managers are also aware that they must step in and not stand by and tolerate any offensive conduct.

If a claim takes place, then a Tribunal may look at the circumstances of the case and the perception the individual before coming to a final conclusion. Some employees may be oversensitive therefore may not succeed, but if a reasonable employee who has been offended or humiliated, the case could be successful.

Not sure what to do to protect yourself? If you have taken reasonable steps to prevent employees from harassing an individual, the business has a statutory defence under the Equality Act. Depending on the circumstances and the size of the resources available for the employer, will depend on what is reasonable but some of the preventions may include:

  • A clear Anti Bullying and Harassment Policy;
  • Ensuring policies are widely available and reinforced e.g. induction process;
  • Investigating any formal or informal complaints using the policy’s procedure;
  • Taking appropriate disciplinary action against those who have breached the policy; and
  • Ensuring managers take steps to prevent bullying and harassment and report it when witnessed.

If your business has these things in place, then they would go a long way to escape the liability under the Protection from Harassment Act and in defending yourself in a constructive dismissal claim.

If you are facing a complaint that an employee is being bullied or discriminatory harassed by colleagues, we advise that you contact us on 01909 512 120 to ensure your complaint is handled in a way that minimises the risk of a claim.

Additionally, we would rather ensure you have the preventions in place to avoid these claims, therefore contact us and we can support you and create a bespoke policy for you.

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Femi Ogunshakin Managing Director
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