Banter in the workplace: what can employers do?

When it comes to words being subjective, few fit the bill quite like ‘banter’. The dictionary definition defines banter as ‘mocking, humorous or arch remarks made about people or things to expose their shortcomings and to make them appear laughable…’

What for one person might be a good laugh and sense of camaraderie can cause offence and upset to someone else. In the workplace especially, whilst banter can be used to create a more sociable environment and build rapport, given the mix of different personalities and backgrounds within teams, banter has the propensity to miss the mark and cause offence. 

As such, workplace banter can cause a significant headache for employers and here we break down what risks employers face when banter oversteps the mark and steps they can take to prevent a hostile working environment, whilst creating a sense of community and camaraderie. 

Equality Act 2010

If the banter someone is subjected to in the workplace relates to a protected characteristic, under the Equality Act 2010 (the Act) this could be classed as harassment, giving rise to possible claims in the employment tribunal for the employer and the perpetrator. Potential compensation for harassment claims is uncapped and will include compensation for loss of past and future earnings as well as injury to feelings.

The characteristics that are protected under the Act are:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

If any banter relating to these characteristics violates the dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for any employee who is subjected to the banter, is affected by it or witnesses it, then this may be classed as harassment. There is also a separate category for harassment of a sexual nature.

It’s worth noting that it does not matter if the perpetrator intended for the banter to have the effect of harassing someone. If the victim reasonably felt that it had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment, the test will be met.

It’s also worth noting that a harassment claim doesn’t necessarily need to come from the person being directly subjected to the banter. If it creates an intimidating, hostile, degrading, humiliating or offensive environment for other colleagues, this could also amount to harassment.

Additionally, there is no requirement for the individual to have made the perpetrator aware that conduct was unwanted for it to be classed as harassment. Even if the banter was only a one-off occasion this could still be considered as harassment under the Act. 

Changes under the Employment Rights Act 2025 (ERA)

In October 2026 as part of the raft of changes coming in under the ERA, the concept of third-party harassment will be reintroduced, making employers potentially liable for harassment of their employees by clients, customers and members of the public. Employers will be under a duty to take all reasonable steps to prevent third-party harassment (note this is harassment of any nature).

One of the primary aims of this reintroduction, as the Government sees it, is to rectify a gap in the current legislation whereby employers are not liable for third-party harassment, unless they had prior knowledge of it happening and failed to act. 

There are also extended obligations being introduced for employers to take all reasonable steps to prevent sexual harassment in the workplace. This requirement will shift the focus away from dealing with incidents after they happen and instead emphasises creating a safe, respectful, and inclusive work environment, through implementation of regular training and application and use of robust policies.

What can employers do to manage workplace banter issues?

There is a fine line between allowing employees to have a laugh amongst each other, creating camaraderie in the team, and a joke going too far or causing offence. Here’s a few recommended steps an employer can take now to ensure it mitigates the risks of claims: 

• Have clear policies and guidelines outlining to employees what is acceptable and what is not. This should include regular training. We also recommend that any policies and training are regularly updated and recirculated at specific times of the year, e.g. around social events where incidents can occur such as Christmas parties. 
• Employers should make clear in training and policies the reporting protocols in place should an employee wish to report any banter they have been subjected to. 
• With the obligation to take all reasonable steps, it’s also important for employers to carry out risk assessments into harassment prevention, which should identify and address risks posed regarding third-party harassment at work and offsite events.
• At a more senior level, employers should think about how managers are rewarded and whether inclusive leadership should be included as part of their performance metrics and criteria. Employers should ensure managers aren’t turning a blind eye to workplace banter which may be causing offence. They should be trained in dealing with difficult conversations and creating an inclusive and supportive environment.