When ‘banter’ becomes harassment: why context matters

The Oxford Learners Dictionary defines ‘banter’ as ‘friendly remarks and jokes’. On the face of it, you would think that workplaces would welcome ‘banter’ with open arms – it puts people at ease, lightens the mood and helps the working day go that bit quicker.

When ‘banter’ turns into legal risk

However, ‘banter’ is not always as ‘friendly’ as it first appears. Unfortunately, harassment and bullying can often be found lurking behind its playful exterior. Both are major workplace issues – not to be taken lightly.

The tribunal’s focus: was it ‘unwanted’?

However, a recent employment tribunal case demonstrated that, even where banter strays into unlawful areas, if the employee can be shown to have actively encouraged it, then they will not be able to claim that it was harassment. In Nunn v Crouch Recovery, Ms Nunn worked in a small family run recovery business. She had a personal friendship with the boss. They messaged each other about private topics. Their correspondence included sexual language, including references to her being eye candy and a ‘MILF’. When the working relationship later broke down, Ms Nunn claimed this was sexual harassment. The tribunal, dismissing her claim, accepted that the messages were vulgar and sexual in nature.

However, when placed in the context of the relationship Ms Nunn had with the boss at the time, the tribunal confirmed that the conduct was not ‘unwanted’ (a key component in the offence of harassment). In particular, Ms Nunn didn’t complain about the conduct at the time (only when relations had soured). She had joined in with the banter and laughed at the comments. The tribunal also found that this wasn’t a case where Ms Nunn had ‘joined in’ as a way of protecting herself where the harasser was in a more senior position (which would have meant that the behaviour could still have been found to be harassing). There was evidence of occasions where Ms Nunn had called the business out on conduct and behaviour. She was not, seemingly, afraid of raising issues which bothered her. She had not complained about the texts at the time.

This is not a case which employers will want to have to rely upon. It is not a ringing endorsement for a positive workplace culture where the employer’s line of defence is – that’s just our workplace culture; we all behave badly. However, it is a reminder that tribunals will look closely at the dynamic between the people involved and what actually happened in real time, not just how it feels in hindsight once trust has gone.

Here to help

At Longmores, our Employment team advises employers on preventing and responding to harassment, bullying and inappropriate workplace behaviour, including how to handle complaints, investigations and disciplinary outcomes.

For advice on addressing harassment and bullying issues in your organisation, please contact Miranda Mulligan, Senior Solicitor, in our Employment Law team.

Please note, the contents of this article are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.