Where is the line between bullying and banter in the workplace?

Bullying can occur at any time throughout life including filtering into workplaces which can result in an unpleasant and toxic work environment. Although there is no legal definition of bullying, ACAS have described bullying as “unwanted behaviour from a person or group that is either offensive, intimidating, malicious or insulting or an abuse or misuse of power that undermines, humiliates, or causes physical or emotional harm to someone”.

The scope in which bullying can occur is very wide and may be a regular pattern of behaviour or a one-off incident. Bullying can happen face-to-face, on social media, in emails or calls occurring at work or in other work-related situations and may not always be obvious or noticed by others. This article discusses how employers can recognise bullying and what they can do to prevent it in their workplace.

Bullying and banter in the workplace

The dictionary definition of banter is ‘the playful and friendly exchange of teasing remarks’ whereas as previously mentioned the definition of bullying has a more menacing undertone.

While many may consider banter in the workplace to be harmless and light-hearted, the Employment Tribunal (ET) has often upheld claims in favour of employees where banter overstepped the line. In addition, research conducted by GQLittler found that ET claims relating to ‘banter’ in the workplace had increased by 45%, from 67 to 97, between 2020 and 2021.

The Anti-Bullying Alliance has published helpful tips for professionals in relation to bullying in the workplace, including how to recognise bullying. According to the Anti-Bullying Alliance, bullying is behaviour that is intentional, hurtful, repetitive and involves a power imbalance. All offensive, threatening, violent and abusive language and behaviour is always unacceptable, whatever the person’s role. This includes any negative language or behaviour in relation to a protected characteristic under the Equality Act 2010 (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex (gender), sexual orientation). When distinguishing between banter and bullying, employers should air on the side of caution. Just because one person perceives something is a joke, doesn’t mean that others will. Many people won’t always feel confident to speak up if they are offended by something and may even go along with it so as not to draw attention to themselves.

Bullying behaviour could be considered  harassment under the Equality Act 2010 if the bullying relates to certain protected characteristics under the Act. However, it is crucial to understand that an employee raising a complaint does not need to have a protected characteristic in order to be offended. To illustrate, an employee who is wrongly assumed to have a certain protected characteristic can be offended by another employee’s ‘banter’ such as, for example, a turban-wearing Sikh man subjected to Islamophobic ‘banter’ despite that his faith has been wrongly assumed.

What can employers do about bullying in the workplace?

Employers should make it clear that bullying in the workplace is unacceptable through the implementation of an Anti-Harassment and Bullying Policy. The policy should set out the company’s approach and refer to the disciplinary procedure that will be used when dealing with bullying complaints. The inclusion of a clear and explanatory policy will provide employees with a cohesive reporting process and should encourage employees who experience bullying – even if it is on one occasion – to report it to the appropriate person. Equally, the inclusion of a policy will act as a reminder to all employees that offensive, discriminatory and bullying behaviour will not be tolerated and if instances occur there is a set procedure for dealing with such behaviour.

Equality, diversity and inclusion training can also help to reduce or eradicate any instances of bullying in the workplace and also provide education about protected characteristics. Regular training within the workplace can remind employees to be mindful of their comments and actions and how certain comments and behaviour may be offensive to other members of staff even where this is not intended.

Instances of claims submitted to the ET relating to ‘banter’ in the workplace are increasing and therefore it is important that employers have systems in place to ensure that the company’s workplace is free from discriminatory and offensive behaviour and that interactions between employees are professional and appropriate.

Employers should be aware that the ET has the power to award monetary damages to an employee who succeeds in a claim for harassment or discrimination, and importantly in discrimination claims there is no limit on the amount of compensation that can be awarded by the ET to the complainant. A tribunal claim could cause a large financial loss as well as reputational damage to an employer. 

If you have concerns or questions about bullying in your workplace or would like help drafting an anti-bullying policy please contact our Employment Team by emailing employment@warnegoodman.co.uk or calling 023 8071 7717.