Workplace offensive banter leads to lawsuits

Workplace ‘banter’ remains a significant legal issue for businesses, with 57 employment tribunal claims last year related to inappropriate workplace jokes, according to research by leading employment law firm GQ|Littler. These cases highlight the fine line between workplace humour and unlawful discrimination, where employees feel jokes have taken on a racist, sexist, or homophobic tone.

Claims related to workplace banter can be highly damaging to businesses, not only reputationally but also financially, as compensation in discrimination and harassment cases is uncapped. Recent employment tribunal cases underscore the risks involved, including allegations of sexual harassment, inappropriate remarks about race and appearance, and escalating workplace disputes due to unchecked behaviour.

One case involved an employee who was subjected to alleged sexual harassment when a colleague put his arm around their neck requesting a kiss, describing the incident as ‘banter.’ In another case, a female employee allegedly made crude jokes towards a colleague, telling him she “found brown men attractive,” referring to him as “babe,” and asking if she could be his “second/work wife,” leaving him uncomfortable and embarrassed. A further tribunal case examined how two colleagues engaged in a prolonged exchange of insults over weight and baldness, which later escalated to personal attacks involving their partners. The tribunal scrutinised the employer’s failure to prevent the situation from deteriorating.

Dónall Breen, Senior Associate at GQ|Littler, says workplace banter can quickly spiral into legal trouble if management fails to intervene. “What’s often surprising about these cases is how initially harmless or jovial situations have gotten out of hand due to lack of intervention by management when it became clear lines were being crossed.” He warns that while joking around is an essential part of workplace culture, employers must step in when behaviour crosses the line. “Employees need to know where that line is and employers must ensure it’s respected. As an acid test, if you would be embarrassed telling your grandmother what was said or done, it’s not appropriate for the workplace.”

He also warns of potential repercussions from cultural shifts, noting that backlash against diversity, equity, and inclusion (DEI) initiatives in the US could embolden some employees to use more offensive language. “Employers will need to watch out for that. As an employer, as long as you remain liable for what happens in your workplace, you need to set the rules.”

Legal risks extend beyond the physical workplace. Employers can be held vicariously liable for offensive remarks made by employees, even outside working hours or on messaging apps. With remote work and evolving digital communication blurring traditional boundaries, businesses must implement clear policies and training to mitigate these risks before they escalate into legal disputes.

A striking example of how company culture must be managed is found in a recent racial discrimination case. An employee defended her use of a racist expression by claiming, “I will not in any way be asked to modify what was nothing more than a bit of British Banter because some inexperienced traveller has failed to adjust to British culture.” She even titled an email to management ‘Banter’ while asserting she had done nothing wrong. The tribunal dismissed her claim and ruled her dismissal for gross misconduct was justified.

Upcoming legal changes will further increase employers’ responsibilities. Under the Workers Protection (Amendment of Equality Act 2010) Act 2023, all employers must take proactive “reasonable steps” to prevent sexual harassment at work. Dónall Breen emphasises that tackling inappropriate banter of a sexual nature will fall under this new duty, making it even more critical for employers to act swiftly when issues arise.

For businesses, fostering a workplace where employees feel safe and respected is not just best practice—it is a legal necessity. Ignoring or mishandling inappropriate banter risks costly legal claims, substantial compensation payouts, and lasting reputational damage. Employers must take proactive steps to enforce clear boundaries, implement robust training, and cultivate a respectful company culture to mitigate these risks.