Employers are being urged to ensure that humour does not cross the line as they may be liable for harassment that occurs not only in the workplace but also outside the workplace or working hours; for example, comments made on private messaging platforms.

The warning follows research by employment law firm GQ|Littler, which reveals there were 66 claims relating to “banter” in the workplace heard in employment tribunals last year.

The claims included some where comments considered as banter could be classified as bullying or harassment.

GQ|Littler advises that “banter” has increasingly been invoked in employment tribunals as a justification for alleged discrimination and harassment.

What one employee might claim is “banter” might actually be bullying or harassment, particularly if someone is subjected to discriminatory jokes on the basis of race, gender, nationality or sexual identity.

Harassment claims are particularly relevant territory for “banter” cases. Under the Equality Act 2010, unlawful harassment occurs where a person engages in unwanted conduct related to a relevant protected characteristic, and this has the purpose or effect of— (i)violating their dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Lisa Coleman, Senior Associate at GQ|Littler, said:

“Whilst humour in the workplace should be encouraged, employers should be taking active steps to foster a respectful and inclusive environment with clear boundaries.

“It is often the case that what one person finds funny another might find offensive. However, to try and stay on the right side of the line, people should be mindful to keep jokes to those they are comfortable repeating and explaining if questioned about them, and avoid those which cross into offensive territory, especially those which relate to protected characteristics.”