The subject of ‘banter’ at work rose to prominence in 1995, when Chevron Oil in the United States made a $2.2m. settlement to female employees who alleged they were sexually harassed via workplace banter, incl. the circulation of a ‘joke’ sheet entitled: ‘25 reasons why beer is better than women’.

Banter and the Law

Though the term ‘banter’ does not feature in Irish statute law, it does surface in the recently revised Codes of Practice pertaining to harassment and bullying.The 2022 harassment Code in respect of: ‘any form of unwanted conduct related to any of the prohibited grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating, degrading, humiliating or offensive environment’, explains that ‘harassment’ includes: ‘spoken words, gestures or the display/circulation of words ...’. Notably, the same Code provides a list of examples of sexual harassment, with the term ‘banter’ reflected in: ‘… suggestive remarks, innuendo or lewd comments, graffiti, written materials, emails, text messages or social media posts’. The Code also explains that ‘harassment’ can materialise via ‘… leering, whistling or making sexually suggestive gestures … derogatory or degrading abuse or insults which are gender-based .. conduct that insults or degrades an employee because she is pregnant or because s/he is transgender’.

Whilst the ‘harassment’ Code’s protection is confined to the well-known 9 ‘prohibited grounds’, the 2021 bullying Code is more expansive in its coverage, though (unlike harassment), it relates to ‘repeated inappropriate behaviour’.

The longstanding official definition of ‘bullying’ is that it is: ‘repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more against another/others at the workplace and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work’. However, it is significant that the Supreme Court’s scrutiny of this definition (in the 2017 Ruffley case - IESC 33), raised the bullying bar to behaviour that is: ‘outrageous, unacceptable and exceeding all bounds tolerated by decent society’. With regard to the implications for ‘banter’, the aforementioned revised Code explains that bullying behaviour includes: ‘Verbal abuse/insults; belittling a person’s opinion; disseminating malicious rumours, gossip or innuendo; use of aggressive and obscene language ..’.

‘Banter’ At Work

Given that – according to the Central Statistics Office’s survey in 2019 – almost one in three of the national workforce claim to have experienced bullying or harassment at work and that (according to the Economic and Social Research Institute’s survey in 2001) most bullying takes the form of verbal abuse and insults (i.e. 81 per cent), it is clear that workplace banter is common and should be a cause of concern for employers. Furthermore, given that the aforementioned Codes of Practice are admissible in legal proceedings, it is clear that employers need to have a solid defence justifying their tolerance of and approach to the practice. Of course, even in the absence of legal proceedings, given that bullying and harassment behaviour is linked to suicides, bad press, low morale, high stress, absenteeism, staff turnover and poor performance, it is a subject that warrants careful consideration and proactive management.

Such concerns are exacerbated by the fact that ‘banter’ may well occur outside normal working hours and/or via remote work arrangements (e.g. at work-related social events, via social media sites). For example, in 2008 the Employment Appeals Tribunal (EAT – UD643/2007) held that though an employee was unfairly dismissed - as ‘the punishment didn’t fit the crime’ - her comments on a social media site warranted censure and disciplinary action, as the comments made about her supervisor on the site were disrespectful, inappropriate and damaging to the employment relationship. Likewise, in 2011 the U.K. courts heard (in Crisp v Apple ET/1500258 /11) that an employee made work-related derogatory remarks on Facebook after work hours – though he argued that they were private, to his friends. Nevertheless, he was dismissed for bringing the company into disrepute and in this instance the Tribunal agreed with the employer, with particular reference to the same employer’s social media policy.

Another factor worthy of consideration in such scenarios is that when it comes to banter or bullying and harassment the effect is what is important, not the intent. In this regard, it is notable that in 2022 a Workplace Relations Commission (WRC) Adjudication Officer (AO) awarded €12,500 to the complainant, finding that the term ‘Chico’ is offensive to persons of Latin American descent, whilst rejecting the Red Cow Hotel's defence that the term was used generally and not meant to be derogatory (ADJ-00031638).

Zero-Tolerance of ‘Banter’?

Given the aforementioned array of potentially negative effects and the legal risks associated with workplace banter, the question then arises as to whether employers should have a zero-tolerance policy on the subject. Of course, this will  understandably provoke the ‘political correctness gone made’ response, as experts point to the reality of working life and the role of ‘banter’ as a crucial component in morale building at work. Notably, this feature of the debate surfaced at the WRC in 2019, when the AO acknowledged that the respondent’s zero-tolerance (of harassment) policy ‘should be complimented’. However, in this case the AO deemed the chef’s dismissal to be unfair, as the risks associated with such a policy include the fact that the gravity of an offence will not be assessed. The incidents in question – incl. ‘a bit of banter’ - were deemed by the AO to be on a ‘very low scale of possible harassment’ and made a €17,500 award to the complainant (ADJ-00020741).

A somewhat similar scenario had surfaced almost a quarter of a century before, in a case involving Bayer Diagnostics Ltd., when a female worker complained about verbal and physical abuse, incl. a comment from the accused party that he would like to kiss her. The EAT held that the accused was unfairly dismissed and should be re-engaged, as the abuse occurred in a workplace where there was plenty of banter and the allegations were deemed: ‘too tenuous to be treated as seriously as the respondent did’ (UD 72/96).

The ‘It Was Only Banter’ Defence

However, given the aforementioned intent v effect distinction, the ‘it was only banter’ defence often fails. For example, in 2017 the Labour Court held that a complaint involving alleged ‘racist and culture based comments’ meant that ‘it was incumbent on the company to carry out an investigation to ensure that such behaviour is not repeated .. ‘banter/slagging’ is not an acceptable defence .. (LCR 21545). Likewise, in the previous year, the Court made a €15,000 award to a saleswoman who claimed sexual harassment. She had told the harasser that she was not interested in a relationship and she had also told her manager about the banter incidents. The complainant’s manager explained that the incidents were ‘ok as they (i.e. the co-workers) were just young lads’. However, the Court ruled that the complainant was sexually harassed, noting that ‘most people of normal sensitivity or fortitude’ would likely find that a conversation of a ‘sexually explicit nature’ creates an offensive working environment.In a comprehensive judgement, the Court rejected the respondent’s defence, as it found that: (i) staff  didn’t understand the policy; (ii) the policy was only in English and (iii) the policy was not applied in practice (EDA163).

The ‘But the Complainant Engaged in Banter’ Defence

In such scenarios it is common for parties to rely on the ‘it was only banter’ defence, often noting that the complainant(s) actually engaged in the same behaviour. For example, the ‘banter’ culture was successfully argued in the UK courts in 2018, when the claimant – who was called a ‘fat ginger pikey’ - was deemed to be actively involved himself in an ‘office culture of jibing and teasing’ (EAT PA/0128/18/LA). Likewise, the (Irish) Equality Tribunal had previously held that a claimant’s allegations about a respondent always making sexual jokes, where ‘the respondent .. encouraged a culture of banter ..’  did not warrant a finding against the (café owner) respondent, as the claimant’s evidence was  ‘inconsistent’ and she ‘most likely’ had acquiesced with some of the behaviour complained about(DEC- E2015-029 – 2016).

Nevertheless, it would be prudent to note the Labour Court’s judgement in 2002 in an ‘in camera’ case (where the claimant sought privacy). She had complained to her employer about ongoing abuse in the form of lewd remarks. There was no proper investigation of the allegations, as the employer alleged that the claimant was a: ‘willing participant in sexual banter ....in the workplace’. Whilst the Labour Court accepted that there was some element of this, it deemed that the respondent’s treatment of the complainant was ‘totally unacceptable’ ( Industrial Relations News - 10/01/2002).

The same point surfaced in an even more striking judgement in 2020, in a case involving an insurance company, where an employee alleged that the (subsequently dismissed) complainant had referred to a third employee, ‘Richard’, as a ‘n*****’. As is common, the complainant argued they did ‘banter’ all the time. Notably, ‘Richard’ agreed that they: ‘engaged in slagging all the time’ and that the complainant ‘did not mean any offence’. Despite the complainant’s argument that it was part of the company culture and the support of ‘Richard’ (who was the subject of the slur), the dismissal was deemed ‘proportionate to the conduct’ (ADJ-00024838).

Coping With ‘Banter’ – Lessons From Precedents

When it comes to coping with workplace ‘banter’, there are some clear and unequivocal lessons to be learned via case precedent, that will serve employers in good stead should they ever have to defend their position on the subject.

For example, in 2018, in a sexual harassment case involving a fast food company – where (yet again) it was noted that the complainant herself may have engaged in banter, the WRC’s AO held against the complainant (noting that the subject was comprehensively covered in the staff handbook, all of which was in accord with the applicable harassment Code of Practice) and that the complaint was handled by the respondent ‘in a reasonable fashion’ , via its policy, procedure and associated investigation (ADJ-00008243). Similarly, in a case involving Limerick County Council – where an unfair dismissal claim was rejected – the Tribunal held that the respondent employer was right to engage ‘independent consultants to investigate the allegations and evaluate in a forensic manner ..’ (UD 765/2012).

Important lessons can also be learned from the 2021 Costa Coffee case, when an employee claimed sexual harassment by a former manager who had posted inappropriate messages on a WhatsApp group for employees. In this instance the Court stated that it was: ‘shocked’ as Costa Coffee had ‘no policy on sexual harassment’ and had provided ‘no training to employees’ (EDA2128 – 2021). Accordingly, the Court made a compensation award of €20,000, as it availed of the von Coulson principles that an award be: ‘effective, proportionate and dissuasive’ (EDA2128).

The importance of policy had already featured in 2019 when a bar manager - who was regularly called a ‘queer’ by the directors, who argued that it was only meant as a joke and banter – found themselves on the wrong side of a WRC decision. The AO found that whilst the staff handbook did have a mission statement on equality, it had nothing in relation to prevention and the procedures for making a complaint. Hence, the employer couldn’t avail of the statutory defence (as provided for in section 14A(2)(a) of the Employment Equality Act) and the AO awarded €20,000 to the complainant (ADJ-00015191).

‘Banter’ - The Successful Defence

Based upon the foregoing – and numerous other precedents in the areas of banter, bullying and harassment – it is clear that a successful defence in the face of such allegations requires the respondent employer to have:

1.  An up-to-date, comprehensive and readily available policy and associated complaints procedure.
2.  Evidence in respect of the provision of training in the relevant areas, at induction and with subsequent refresher inputs.
3. Evidence that allegations/concerns were acted upon in line with the aforementioned policy and procedures.

And whilst it won’t drive a third-party judgement, the provision of a referral to an Employee Assistance service for affected parties will definitely do no damage to the employer’s case.

Legal Island Training Resources for Your Staff

Workplace Bullying | eLearning Course

Are you responsible for overseeing the implementation of training for all employees on the new Bullying Code of Practice in your organisation?
Legal Island has created a 45-minute eLearning course for all employees. The provision of this training for your staff will enable your organisation to act in compliance with the Code and help to raise awareness of bullying and harassment in the workplace and explain what to do if employees are concerned.

Click here to view our course on workplace bullying.