Navigating workplace banter- an employment law perspective.

May 21, 2024 | Information

Banter, jokes and pranks between colleagues are a daily occurrence in the majority of workplaces, but how do we establish when a line has been crossed? 

Humour is important and many people rely on it to get through the challenges of their working day. Banter can also foster positive relationships between colleagues, but it is important to be respectful and for clear boundaries to be set. From an employment law perspective, issues can arise when workplace jokes relate to a protected characteristic, as defined in the Equality Act 2010.

There have been an increased number of claims in the employment tribunal related to banter in the last few years, many of which have been determined to be bullying or harassment in relation to discriminatory jokes on the grounds of race, gender, nationality or sexual identity. This should cause concern for employers, as they are likely to be held vicariously liable for the actions of their employees. Additionally, employers should be aware of the upcoming changes to the Equality Act 2010 due to come into effect in Autumn this year (2024) which will impose a new legal duty to take reasonable steps to prevent sexual harassment of employees during their employment. 

However, the more recent case of Richardson v West Midlands Trains Ltd sheds some light on the perception ofthe employment tribunal on workplace jokes. The case involved a Claimant who left shed exoskeletons of a tarantula and snake in a colleague’s pigeonhole on separate occasions after said colleague had expressed a dislike towards insects. After the second incident involving the snakeskin, the colleague was distressed enough to report the pranks to her line manager, particularly as the Claimant had been asked to stop by the colleague after the tarantula incident. The Claimant was subsequently dismissed for gross misconduct.

The tribunal found that these were “harmless, childish pranks” and the Claimant was reinstated in his role and awarded £40,000 for his unfair and unlawful dismissal. Whilst this is somewhat of a win for workplace banter, the tribunal in this case were clear that the Claimant’s actions were inappropriate and unacceptable due to the distress caused to the colleague and therefore would have amounted to misconduct. The key point is that the careless pranks did not amount to gross misconduct warranting dismissal.

In determining how to deal with a workplace prank gone wrong, an employer should consider the context and how serious the pranked-employee found the prank, particularly where they have already called for any pranks or jokes to be stopped. Conversely, they should also consider the employee’s motivations for the prank and any admission of guilt or apology after the events. Some pranks could be serious enough to amount to gross misconduct but it is important to be able to link this to company policies and consider all the circumstances before being quick to make any decision.

With April Fools’ Day just last month, we expect there to have been a number of pranks and jokes between colleagues. As an employer, are you equipped to deal with any fallout from this? Is your disciplinary policy up to date and fit for use in these situations? Have your employees been informed about where the boundaries lie? Do they understand the organisation’s equal opportunities policy? If your answer to any of these questions are no, please get in touch with us today, we’re here to help with any of your employment law or HR needs.

By implementing clear policies, providing training and promoting a culture of respect and inclusion, employers can create a workplace where everyone feels valued and respected, all while having a laugh with their colleagues.