Employment tribunals heard 57 cases relating to workplace banter in 2024. Examples of cases included a running joke where two colleagues would exchange insults about being “fat” and “bald” — but tempers flared when the abuse began to  include comments about their partners; and a male Asian employee who felt extremely uncomfortable when he became the subject of “crude jokes” and advances from a female co-worker who told him he was a “babe”. Most of the banter tribunals related to where there were allegations of some kind of discrimination involved, sexist, racist or homophobic. 

It’s such a complex area: the nature of humour, and people’s intentions and motivations compared with the effect on others around them. For comments at work to be considered banter and not a cause of offence, an employer will need to show that the conduct involved either didn’t actually offend the ‘victim’, could not have reasonably offended them, that the conduct wasn’t related to a protected characteristic (like race or ethnicity, gender or sexuality), or that the ‘victim’ joined in with the ‘joke’. The issue for HR is what can be done in practice. The continued number of claims each year suggests that there are certainly risks to reputation and in terms of costs (when compensation for discrimination cases can be uncapped). So you could circulate guidance on what’s appropriate for banter and what’s not; maybe monitor conversations and attempt to pick up and pre-empt problems; be more assertive about the disciplinary processes in place; or, do you give up and just impose a blanket ban on banter?

Employment lawyers have emphasised the liability involved: employers can be held responsible for offensive comments made by employees, even when working remotely or via messaging apps, and outside normal working hours. The new Worker Protection Act (the duty to proactively take “reasonable steps” to prevent sexual harassment of their employees) adds a further level of scrutiny and pressure, given the obvious links between banter and other harassment claims.

The workplace chat, the jokes, the good-natured wind-ups and innocent flirtations, can all be part of what makes work rewarding for most people, a part of how good working relationships are made and kept going, leading to a sense of belonging and engagement. Any guide for appropriate banter, by its nature, is going to struggle to have much in the way of authority or credibility — and perhaps only become the subject of grievances and banter itself.

Maybe the banter dilemma (do you clamp down or not? And what does that say about how you see your workforce and whether you trust them?) can best be dealt with by paying more attention to workplace culture. Where there’s a healthy culture, of openness, of good people skills, of good judgement, then issues over who’s allowed to say what are made simpler. People just know. And if they don’t, other people around them will make sure they find out quickly.

The best response from HR would include:

• looking at a strategic level at how to build a culture of better conversations, how they can encourage more honesty, more conversations that deal with root issues of power and inequality — in other words, making constructive challenge a normal and healthy part of the workplace culture. HR need to ask whether their systems and approach are fair and just, do they lead to the kind of confidence that encourages a ‘victim’ to come forward?;

• encouraging leaders to demonstrate visibly the kinds of skills and behaviours expected by employees. Too often development is only provided for senior teams and managers when there’s an issue — a change programme, reports of poor engagement or cases of bullying. Some managers have the in-built skills needed to manage conflict constructively and keep their values in place, some others need support;

• management programmes being reviewed to ensure they include the conversation skills used to keep values at the heart of work interactions and relationships, to have constructive, positive conversations no matter what the situation is. The result is more engaged, productive and self-managing teams;

• giving training to all employees to help them have better conversations, be able to deal with difficult situations, be prepared to be challenging when necessary, to stand up to perceived bullying or inappropriate ‘banter’, not to instigate disputes but to have the ability to raise and resolve issues themselves. In this way employees become accountable and in a position to live out the organisation’s values in practical ways every day, to see and feel their relevance. There is also a fundamental equality in practice, with everyone having the opportunity to use their skills, not to be the subject of them.