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.
However, we’re all aware that ‘banter’ isn’t always friendly’. Unfortunately, harassment and bullying can often be found lurking behind its playful exterior. Both are major workplace issues – not to be taken lightly.
Nunn v Crouch Recovery
A recent employment tribunal case demonstrated that, even when banter enters unlawful areas, if the employee can be shown to have actively encouraged it, then they can’t 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, dismissed her claim, even though they accepted that the messages were vulgar and sexual in nature.
The tribunal determined that, when placed in the context of the relationship Ms Nunn had with the boss at the time, the conduct was not ‘unwanted’ (a key component in the offence of harassment).
Circumstances matter
Critically, 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 hadn’t complained about the texts at the time.
Employers should still be vigilant
This case is probably the exception rather than the rule and not one to rely upon. It’s not a ringing endorsement for a positive workplace culture when the employer’s line of defence is, “that’s just our workplace culture, we all behave badly.”
However, it’s 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.
Further reading
What ‘banter’ is reasonable in the workplace? – Hunter Law
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