After the recent press interest in the alleged racist, sexist and homophobic text messages sent between Malky Mackay and Iain Moody during their time at Cardiff City the topic of banter in the workplace has risen its head once again.
The League Manager’s Association (“LMA”) has released a statement acknowledging that the messages were disrespectful, but attempting to excuse them as a means of “letting off steam” in “friendly text message banter.” The statement has been heavily criticised and there have been calls for the Chief of the LMA to resign as a result.
But what is “banter”? Banter is often cited as part of a defence in Employment Tribunal claims alleging discrimination or bullying and harassment leading to constructive dismissal. Of course, some degree of banter in the workplace could be said to be expected, and the nature of the business will of course dictate the reasonableness of such banter. However in reality, it is very rare that a Tribunal will allow it to be used as a defence in an employment claim. It is therefore vital for employers and employees to realise that banter can easily cross the line from office camaraderie into something much more damaging. Unsurprisingly, details of such claims can easily find their way into the press resulting in embarrassing and negative publicity for an employer as well as unlimited compensation in discrimination claims.
To protect themselves employers should ensure not only that they have robust equal opportunities and bullying and harassment policies in place but also that these are communicated to staff and enforced in practice. Employees should be encouraged to raise their concerns with management either informally or through a formal grievance. Employers should ensure that senior members of staff deal with such complaints seriously and take appropriate action in order to avoid Employment Tribunal claims. Employees should be left under no illusions that any banter or conduct which is deemed to be unacceptable will result in disciplinary action.
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