Nothing makes an employment lawyer's ears prick up like the word "banter". Once the "banter" defence is invoked; "yes I said those things, and yes on the face of it they are offensive - but I was only joking!" it's a very bad sign for the employer on the wrong end of a discrimination or bullying claim.
So how do workmates tread the fine line between being humourless and being offensive. Here's our top tips:
1. Tasteless jokes are often cited in discrimination claims, so be aware of the different types of discrimination. If you're about to comment on someone's sex, race, sexual orientation, religion, disability or age in a flippant or negative way then alarm bells should be ringing. Step away from the comment. No good can come of it. Age discrimination is the one that still tends to catch people out. It was the last of the different types of discrimination to be made unlawful - in 2006 - and many people will still make a joke at the expense of the office "old fogey" when they wouldn't dream of commenting on someone's race or sexual orientation. Something to bear in mind when you're asked to sign the next birthday card doing the rounds.
2. "Really, when you think about it - what I said was a compliment" No, no, no. Even "compliments" can make someone feel awkward, especially in relation to sexual harassment.
3. It's not just discriminatory comments that should be avoided. Any unpleasant or negative comments to a colleague could constitute harassment. Sometimes good friends do build up relationships which involve constant mickey-taking of each other. But don't let this style of humour become your default for anyone who isn't a close friend. It's often a natural instinct for someone to laugh along and pretend they're not bothered, when really they are. Unless you know someone really well, you won't be able to tell the difference.
4. Consider the position of the other person: are they more junior than you? Have they recently joined the team? Are they in a minority in the team, e.g. a women working in a predominately male environment? All these things may make them feel more sensitive to comments, and less able to complain about it.
5. Consider your position: if you are senior and have a hand in management decisions, you need to be beyond reproach. Otherwise, any comments you make won't just be evidence of harassment in themselves, they could also be used as evidence that you may have discriminated in decisions about hiring and firing.
6. Think about the rest of your team. Any comment you make doesn't exist in isolation, it also contributes to an environment where that type of humour is accepted. You may only make one joke, but if you are the tenth person to make a similar of joke that day, the recipient's sense of humour will wear thin pretty quickly. If one person always seems to be the butt of office jokes, don't wait for HR to tell you to cut it out.
7. Be especially cautious of email. It's all too easy to forward a "hilarious" joke or video to several recipients at once, but if some of them find it offensive then it's not much of an excuse to say that you were just passing it on. Your employer is likely to have special rules about use of IT systems, plus there will be a paper trail showing exactly what you sent. If you wouldn't be happy to copy in the head of HR and the head of IT, then don't click send.
8. Here's a good rule of thumb - imagine your comment being read out in a barrister's withering tones in front of a scowling judge. Stripped of its context in the jokey back-and-forth between workmates, anything close to the knuckle is going to sound that much worse.
9. If your boss takes disciplinary action against you for comments you've made; it's usually best to apologise, promise to be more sensitive in future and suggest that you'd be happy to participate in equal opportunities training. This puts the ball back in their court and will usually stand you in better stead that insisting that you haven't done anything wrong because it was all just a joke.
10. Nobody, not even employment lawyers, wants to ban office humour. But sometimes derogatory humour can become a habit that can land you and your employer in hot water. Think of a different joke that's self-deprecating or that doesn't put anybody down. If you still want to make your original joke, check your mantelpiece for a Perrier Award. If there's nothing there, then your office can probably survive without the benefit of your wit on this occasion.
If you've suffered discriminatory or bullying comments at work, or if you're in trouble for making comments, our employment team can advise you.