BEERG Newsletter - UK: Office “banter” can end in court

A new report from the UK law firm, GQ Littler, says that the number of employment tribunal cases relating to the use of “banter” in the workplace rose 44% last year. The question of what constitutes banter is of increasing important in tribunal cases. What one employee might claim is light-hearted teasing can be construed by a tribunal as bullying or harassment. This is particularly the case, says Littler, if comments relate to legally protected characteristics such as age, sex, and race.

GQ Littler said companies could be found vicariously liable for any discriminatory comments by staff made “in the course of employment”, even outside working hours. It found the number of cases in which workplace banter was cited rose from 67 in 2020 to 97 in 2021.

Last September, a female Barclays banker whose line manager had referred to women as “birds” won an employment lawsuit against the bank. Anca Lacatus, an analyst, sued Barclays in the East London Employment Tribunal, which upheld her claim of direct sex discrimination. The manager assumed Lacatus saw his actions as “light-hearted banter”, but the tribunal concluded that he had “in a rather puerile attempt to be ironic, used sexist language”. Barclays said after the ruling that the language used had been “inappropriate and not acceptable”.

In November plumber David Robson, then aged 71, won £25,000 for unfair dismissal and unlawful age discrimination after he sued his former employer, Isle of Wight-based Clarke’s Mechanical. The tribunal rejected claims that the nickname used by colleagues for Robson, “Half-Dead Dave”, was “building site banter” and said it was a “frankly derogatory reference to his age”.