Spring has sprung! With the dark, grey days of winter behind us, moods improve and laughter and frivolity increase in many workplaces. But with laughter comes invisible boundaries: one person's humour can be another person's upset.
Few of us would want the work environment to be sterilised of good humour, but people find humour in different things. When one person is upset by another’s joking or banter, the joker will often respond that they did not mean to offend. A person's good intent, however, does not necessarily form a defence to a claim of harassment when a discrimination complaint is raised: there can be real legal risk in office jokes and pranks.
So how can employers preserve a fun and humorous workplace without crossing the line? Some points to bear in mind:
- Harassment in discrimination law is often misunderstood. It's not just about sexual harassment or calling someone an offensive name related to whatever protected characteristics (e.g. age, sex) apply. It’s defined in the Equality Act as conduct related to a protected characteristic with the purpose or effect of violating someone's dignity or creating an atmosphere in work which could be intimidating, hostile, degrading, humiliating or offensive. An old school classic example was the nude calendar hanging on the office wall or certain tabloids lying around left open at page 3, although few employers would now tolerate this. More current examples are jokes that stereotype on grounds of age, say, such as ribbing older colleagues about lack of expertise with technology. An Employment Tribunal will examine not just the purpose of the humour, but the effect of the humour on the person complaining.
- That said, Tribunals must also consider whether it is reasonable for the humour or banter to have the intimidating or degrading effect complained of: in other words, there must be some objective grounds for the complainant to have been upset. In our experience, however, this is a fairly low hurdle for claimants; they are not expected to have a particularly "thick skin".
- There can also be arguments of fact about whether the complainant did really find comments offensive, particularly where they participated or gave as good as they got, although such arguments might fairly be characterised as the last refuge of a desperate respondent!
- Harassment claims can also be brought without the complainant leaving employment. This can lead to a particularly explosive workplace situation, particularly as any retaliation against the complaining employee for alleging harassment could lead to a victimisation claim.
- Aside from harassment claims under the Equality Act, can jokes result in a breach of contract enabling an employee to resign and claim constructive dismissal? Potentially – yes. The courts have in the past suggested that there is no defence to a claim for breach of the implied term of mutual trust and confidence – on which most constructive dismissal cases are founded - where the nature of the workplace may be tough or boisterous for all, for example the world of football. The courts also resisted the argument that paying staff high salaries in a high-pressure trading environment somehow permits worse behaviour from management, in the Horkulak v Cantor Fitzgerald case.
- However, Employment Tribunals may be open to a more pragmatic approach to the norms of different working environments. When an editor shouted “Can anyone tell me what’s happening to the [expletive] pope?” across a newsroom, a colleague brought a claim for harassment on grounds of religion in Heafield v Times Newspapers. The claim failed, with the tribunal finding that there had been no intention to cause offence, that the comment was not made on grounds of religion, and that it was not reasonable for the comment to have had the effect of creating a hostile or offensive environment for the claimant. A blow for freedom of humour? Perhaps, but the outcomes of these cases are highly fact-specific so this should not be taken as a licence to joke about sensitive subjects.
- Conceivably, repeated unwanted conduct in the form of jokes could found a claim for harassment under the Protection from Harassment Act 1997. However, harassment under that Act requires that the harasser knows or ought to know that their behaviour amounts to harassment, so is less likely to catch unintentional offence caused by misplaced humour.
It would be a sad day indeed to see humour banned in the workplace. But humour tends to have a transgressive element, probing the boundaries of normal behaviour and exploring taboos. Inevitably jokes carry some risk both for the joker and by extension their employer.
Management should keep an eye and ear on workplace banter to ensure that jokes not excessive, likely to cause offence, or frequently directed at particular individuals or groups. Anti-harassment and bullying policies can also be a useful tool to establish standards of behaviour. Importantly, managers must take any complaints or concerns seriously: otherwise, a joke could quickly become no laughing matter.