Industrial banter – when the joke backfires

Workplace banter and industrial language is quite usual in manufacturing environments.

But how do you know when the joke has gone too far? When does banter become harassment? If you don’t know where the line should be drawn, you could end up in an Employment Tribunal.

So how much do you know about this subject? Do you think the following could amount to harassment?

“You’re a stroppy little teenager!”
Yes! This was actually said by a manager to a young worker. It may sound innocent enough – maybe the sort of thing you hear in your own workplace – but when put before an Employment Tribunal, it was held that the manager was guilty of harassment on the basis of age.

Sending an email to a colleague questioning the paternity of an employee’s unborn child.
Yes! This could amount to harassment on the grounds of sex. Sex-related harassment is behaviour that is linked to a person’s gender and causes the individual offence.

Asking an employee with a sight impairment “How many fingers I’m holding up?”
Yes! Asking personal questions about someone’s physical or mental impairment may constitute disability harassment.

“He’s HIV positive? I didn’t know he was gay.”
Yes! Although it may seem an innocent enough question, these types of comments could be considered sexual orientation harassment.

Repeatedly asking an employee if they want a sausage roll when you know they are a Muslim.
Yes! These types of comments could be construed as harassment on the ground of religious belief.

What is Harassment?
Under the Equality Act, harassment is defined as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating and intimidating, hostile, degrading, humiliating or offensive environment for that individual”. The protected characteristics are as follows: age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.

Whilst certain types of behaviour such as over-zealous management, poor treatment, pranks, horseplay or industrial language may not amount to harassment under the Equality Act, they do bring about negative effects in the workplace. They may cause grievances, stress absences, disengaged employees, resignations and constructive risks.

Harassment in Manufacturing
It is possible that your workplace is made up mostly of male workers. Despite efforts in this regard, women are still under-represented in the sector. You must ensure that female employees are not subject to any form of harassment.

If you have a diverse workforce with workers of different nationalities, cultures and religions, you need to ensure that they are not subject to racist, xenophobic or discriminatory name-calling or jokes.

Remember that anything that an employee does during the course of their employment will be deemed as having been also done by the employer, irrespective of whether the employer knew or approved the action or comment constituting harassment. In simple English, if an employee is found to have harassed an employee, the employer will be held responsible. To avoid this, you must be able to prove that you have taken all reasonable steps to prevent employees from committing harassment in your workplace.

How can you prevent harassment?
A good starting point is to develop a working environment in which it is clear that you will not tolerate harassment in your workplace.

Tell your employees that it is their responsibility to ensure that their behaviour does not cause offence and to stop immediately if they are told that it is unwanted or offensive. You should also make them aware that all allegations will be investigated and disciplinary action will be taken when required.

It is always helpful to have documented policies and procedures, detailing what your standards and expectations are in this regard and, where possible, to train managers and supervisors to identify concerns.

How do I deal with a complaint of harassment?
You must investigate the matter promptly and thoroughly. The key question to ask is “could the comment or action be reasonably considered to have caused offence?” If no reasonable person would be offended, then harassment has not occurred

Please note that an Employment Tribunal will look at a number of factors when considering whether the act is a form of harassment, such as the employee’s perception, the circumstances of the case and whether or not it is reasonable for the actions to be deemed as harassment.

The way you resolve an issue will depend on the merits of the case, but it could include an informal discussion, counselling, mediation or going through formal disciplinary procedures. In very serious cases, it may result in dismissal for gross misconduct.

What is “reasonable”?
Unfortunately, this is the grey area! If everything was black and white, we wouldn’t need lawyers and tribunals.

This highlights the need to have expert help at hand. If you’re ever in doubt, speak to a legally qualified and experienced Employment Law Adviser.

Director of Legal Services

James Tamm

Whether you’re facing an immediate challenge or just want the reassurance of an expert second opinion, we’re here to offer clear, commercial advice so that you can focus on what you do best.

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