“It was just banter…” – Famous Last Words in Employment Tribunals
April Fool’s Day has long been associated with harmless jokes and playful pranks. The kind of jokes that prompt brief confusion and eventual laughter. Maybe you’ve even fallen for the classic taped-over mouse sensor trick. For a moment, the surprise is part of the fun.
Humour, when used well, is a great tool in the workplace to strengthen relationships, boost morale and help create a sense of camaraderie within a team. It fosters a culture in which people feel comfortable laughing together, leading to positive engagement and team connection. When done right, it also fosters a real culture of inclusion.
However, the line between what is friendly banter and what is harmful is not always clear. What one person sees as light-hearted humour, another may experience as embarrassing, unkind or even offensive. In employment disputes, ‘banter’ is frequently used as a justification for behaviour that has crossed the line – but it is not a legal defence!
When workplaces are thinking about April Fools’ Day, it should also be used as a reminder that ‘workplace banter ’ should not come at the expense of dignity, safety or inclusion.
When Banter Isn’t Just Banter
Workplace jokes can quickly become problematic when they:
- Target someone’s protected characteristics or identity
- Ostracise someone repeatedly
- Cause embarrassment or humiliation
- Create safety risks
Under the Equality Act 2010, harassment occurs when unwanted conduct related to a protected characteristic has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile or degrading environment.
In other words, something described as “banter” can still amount to harassment if the impact on the individual is harmful. It doesn’t matter what the intention was; what matters is what effect it had on that individual.
When humour consistently leaves someone feeling uncomfortable or left out, it can quickly become a workplace issue rather than a workplace joke.
The Very Limited Circumstances Where “Banter” Has Been a Defence
Cases where banter has successfully been used as a defence are rare. They arise only where the behaviour forms part of an established pattern of mutual joking that the claimant clearly embraced, rather than endured. This has been seen in Evans v Xactly Corporation Limited. Mr Evans (claimant) was dismissed from Xactly on the grounds of poor performance, and in turn, brought several claims, including a harassment claim on the grounds of disability and race for being called a “fat ginger p***y”. The tribunal accepted that the comment was potentially discriminatory and harassing, but had to consider the context surrounding it. The claimant in this case had been an active participant in a workplace culture where colleagues regularly exchanged inappropriate and offensive remarks, and he had made a similar comment to another colleague. Because of this, the tribunal concluded that the comments, within that specific environment, were not unwanted and had not created a hostile or degrading environment for him.
This case illustrates just how unusual it is for banter to succeed as a defence. It is dependent on clear evidence that the comments were genuinely welcome and understood by everyone involved as part of an established pattern of joking. In many workplaces, there are differences in seniority, gender or influence that can affect how comments are received and whether an employee feels able to object. These dynamics become especially important when considering cases such as Munchkins, where the tribunal found that the behaviour, although framed as banter, was unwanted and had a very different impact on the employees involved.
When “Banter” Becomes Harassment – Munchkins Restaurant Limited v Karmazryn
In this case, two waitresses brought claims after their manager repeatedly asked them about their sex lives and made sexual remarks. The comments were framed as jokes and part of the workplace “banter”.
Even though the employees sometimes participated in the conversations, the tribunal still found that the behaviour amounted to harassment. The tribunal recognised that employees may sometimes join in with inappropriate conversations simply as a way of coping with the situation or avoiding conflict.
The tribunal also took into account the fact that the comments were made by a manager, which increased the pressure on the employees to appear agreeable even when they were uncomfortable. This, combined with the fact that the comments were made by a male manager to female employees, meant that the context was completely different.
This case highlights an important point: just because someone laughs along with a joke does not necessarily mean the behaviour is welcome.
Sometimes the laughter is less “that’s funny” and more “I’d rather not make this awkward at work.”
Tips for Employers
This doesn’t mean that humour needs to completely disappear from the workplace. In fact, when used well, it can be a positive part of team culture and connection.
However, employers should ensure that humour contributes to a respectful and inclusive environment rather than undermining it. Some practical steps include:
- Reinforcing clear policies on bullying, harassment and workplace conduct
- Training managers to recognise when banter may be crossing the line and setting clear expectations of conduct in the workplace
- Encouraging humour that brings people together rather than singling someone out
- Addressing concerns early before behaviour escalates
April Fool’s Day might invite a bit of creativity in the office, but pranks should never come at the expense of someone’s dignity, safety or well-being.
Of course, this doesn’t mean every joke needs to be signed off by HR first. But if the punchline could end up in a grievance meeting, or worse, an employment tribunal, it might be worth rethinking the joke.
After all, the best workplace humour is the kind where everyone is laughing, and no one feels like the joke is on them.
What To Do Next
- Review your policies and consider when the last time you updated your bullying, harassment, and conduct policies. Make sure they reflect current law and set clear expectations of all employees.
- Talk to us: Thrive Law helps organisations create safer, more inclusive workplace cultures. Whether you need a policy audit, manager training, or support handling a live issue, we’re here to help.
If you would like guidance on supporting your team, please contact us at: enquiries@thrivelaw.co.uk
