By Maria Ward-Brennan
People should use their common sense when joking around colleagues, lawyers have warned, amid a rise in people taking offense to comments – and complaining to managers and the courts.
The warning came after a Tory councillor was sent to diversity training for using a mock-Irish accent, over the course of eight years, to hail an Irish council official.
One lawyer said complaints that went to tribunal would be thrown out if they were “spurious” but warned office behaviour expectations have sharpened in recent years.
Wedlake Bell partner Stephen Ravencroaft stated that there has been “a very big sea change” in the work place, which sees people feeling more able to speak out about all sorts of things in the workplace.
He noted that “people feel more able to voice their concerns, whereas they may have felt less confident about doing that five or 10 years ago.”
Bloomsbury Square partner Will Burrows explained that his team is increasingly seeing employers viewing harassment as an entirely subjective issue, resulting in employers dismissing employees based on how complainants have perceived the actions of a fellow employee.
He noted that there is now a drift towards a less tolerant workplace whereby smaller things are being seen as harassment, when objectively it isn’t.
He believes that there is a lot of misinterpretation of the Equality Act, as companies are taking account of entirely subjective viewpoints, rather than taking an objective view as to whether the behaviour complained of actually amounts to harassment in the first place.
Martin Pratt, partner at RWK Goodman stated that employment judges don’t want to ban jokes in the office, which “they have set down on a number of occasions”.
He noted the Employment Tribunal is not humourless, “they know where the line is,” adding “I have seen them throw out spurious complaints where people have unreasonably taken offence.”
However, he warned that people should remember the context around what they say, with an example of “what is suitable on a building site is not suitable in the school.”
Pratt stated that “in the City, people are always like ‘oh they’re trying to ban jokes at work’, I don’t think they are, I just think one needs to be aware that cultural sensitivities are greater than they used to be.”
“If you’re mimicking someone’s accent, I think unless you know that individual really well, it’s probably best not to do it,” stated Pratt.
Susan Thompson, partner at Simkins explained: “While a joke may genuinely be meant to be amusing, and not cause offence to others, it may be considered harassment if it causes humiliation, intimidation or hostility.”
“It is entirely possible, therefore, that mocking or mimicking someone’s accent could be reasonably perceived to be offensive or humiliating, and constitute harassment,” she added.
Pratt pointed out that he doesn’t think anybody wants to turn the workplace into a completely humourless place. He warned that people need to be aware that just because you get on very well with somebody, you have to be very conscious of the perception of what you say and what may or not be offensive is different for others.
“For example mimicking someone’s accent, it’s best not to do it, even if the person you are speaking to understands and knows you well, that might not be true of the person sitting next to them”, he added.
Charlie Thompson, Partner at Stewarts explained: “If accused of bullying or harassment, it is rarely a strong defence to say it was just ‘banter’. And whilst it’s very common not to realise that you’re causing offence or upset, that isn’t a watertight defence.”
Joseph Lappin, head of employment and partner at Stewarts stated that “there is often a fine line between ‘workplace banter’ and harassment.”
“To anyone who is unsure whether it’s appropriate to say something in the workplace, I’d suggest ‘if in doubt, don’t say it’,” Lappin added.
