The reasonable limits of ‘banter’ in the workplace

Employers are faced with an unenviable task when tackling ‘banter’ in the workplace. There is always a fine line between banter and potential bullying and harassment. Employers would be forgiven for thinking that it might just be easiest to ban ‘banter’ altogether.

However, such an approach is unlikely to be sustainable in practice.

Workplaces are inhabited by human beings. In-jokes and ‘friendly banter’ are, to an extent, human nature and an important part of human interaction. A zero-tolerance approach might also, on the evidence of the recent case of Richardson v West Midlands Trains Ltd, lead to a risk of legal claims against the employer.

Mr Richardson left a tarantula skin and snakeskin in the pigeonhole of a colleague who, he knew, disliked spiders and snakes. He was dismissed for gross misconduct. The tribunal held he had been unfairly dismissed and re-instated him. They acknowledged that the claimant’s conduct was misconduct, but it wasn’t serious enough to amount to gross misconduct and to justify immediate dismissal.

The tribunal in this case provided some helpful guidance on acceptable ‘banter’:

• Context is very important;

• Employers should seek to understand the employee’s motivation in performing the prank; and

• Continuing a prank after being asked to stop could be a more serious offence than the prank itself.

Employers who are faced with a misconduct allegation which has its roots in ‘banter’ should take account of these tips when considering the most appropriate sanction.