What is the Difference Between Office Banter and Illegal Harassment in England?

It is illegal to discriminate in employment in England based on one of the nine protected characteristics such as race, sex or sexual orientation. Harassment is also unlawful as it is a form of discrimination. Office banter is an activity your staff may engage in, and whilst it can be similar to harassment and illegal discrimination, it is not always the latter. However, there is a fine line between the two. It is therefore crucial that you, as an employer, understand the difference to avoid employee discrimination. If your staff discriminate, you may be liable if you do not take reasonable action to prevent it. You could face an employment tribunal for a discrimination claim if you or your employees discriminate.

This article will explain to you, as an employer, the difference between office banter and illegal harassment in England. It will explain what illegal harassment and office banter are and then explore the key differences between the two.

What is Illegal Harassment?

Illegal harassment is a form of illegal discrimination. It is unwanted conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. Discrimination is illegal in employment where it concerns any of the nine protected characteristics and, therefore, the same for harassment. These are:

• race;
• religion or belief;
• sex;
• sexual orientation;
• disability;
• age;
• maternity and pregnancy;
• gender reassignment; and 
• marital status and civil partnership.

Harassment is not only illegal if the person has that characteristic but can still be illegal where:

• someone perceives that they have it; or
• they are associated with someone who has it.

Illegal harassment is also where:

• a person conducts unwanted conduct in a sexual manner; 
• where a person treats another worse because they have rejected or submitted to unwanted sexual behaviour; or
• where a person treats another worse because they have rejected or submitted to unwanted behaviour in relation to gender reassignment or their sex.

You can face an employment tribunal if you or your staff engage in illegal harassment. As a result, it can be costly and damage your reputation as an employer. For example, the average cost at an employment tribunal for a race discrimination claim is £102,259. Therefore, you should ensure you prevent illegal harassment in your workplace.

What is Office Banter?

Office banter and humour is casual chat in the workplace between colleagues, which often contains jokes. Simply, it is playful behaviour between your staff. 

Office banter can help make the working environment friendly and is a normal activity amongst your staff with their colleagues. It is something you can encourage as part of healthy and positive staff morale and can keep your employees communicative and energetic. It may be considered banter if colleagues accept the chat and do not complain when it arises or near to it happening. 

However, there are times when office banter is not banter but illegal harassment; the perception of it by the person receiving it rather than the intention of the person commenting can be the decisive factor. Also, if so-called office banter mentions a protected characteristic such as age, it is most probably a comment which is illegal harassment. As an employer, you should ensure that your staff understand the fine line between unlawful harassment and office banter.

A person may raise comments as office banter if accused of illegal harassment, such as if these types of comments are accepted in your workplace and if the behaviour is expected and accepted. However, no employer should rely on banter as a defence against the possibility that you could face a discrimination claim. 

What Are Key Differences Between Illegal Harassment and Discrimination and Office Banter?

Key Takeaways

The difference between illegal harassment and office banter is a fine line in the workplace so it can be difficult to distinguish between them. Differences are, for example, that unlawful harassment is about one of the nine protected characteristics, but office banter can be on any subject. Also, office banter can improve the office environment, but illegal harassment worsens it. As an employer, you must understand the difference and make an effort to ensure your staff do too. If staff engage in illegal harassment, you could be responsible for this.  

If you need help understanding the difference between office banter and illegal harassment in England, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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