Thank you to everyone who sent in questions for our online clinic on banter in the workplace.
Here is a summary of the questions and answers:
What is ‘unacceptable’? Can you give some examples?
Under law, any unwanted conduct related to race, sex & age that has the purpose or effect of creating an unpleasant workplace. The test is a balance of what a reasonable person thinks about it combined with what the complainant thinks about it. E.g. porko, Jersey bean, babe, gay-boy, tranny, baby-machine, gramps are all terms that some people/courts find objectionable.
If I overhear banter on the street, is there anything I can do?
In most cases, no. If you, however, have a ‘relevant relationship’ with the speakers then you may be able to action any offence. Relevant relationships include being an employee, a client, a student, a club member, a tenant, a user of public premises.
How far does an employer’s liability extend for employee banter? E.g. outside work to posts on personal social media accounts?
The employer can be vicariously liable for acts committed in the course of employment only. ‘Course of employment’ is widely defined to include acts outside of normal working hours and normal duties. An employer will argue no-one is employed to post on soc media; but a client will complain there is a relevant relationship.
If my company is brought to tribunal, will it mean that it goes in the JEP/News ?
Yes, it could. The Jersey Employment and Discrimination Tribunal is a public court that is open to journalists as well as members of the public. Restrictions on reporting are very limited and do not ordinarily extend to the average case. The point employers should remember is that reputational damage to the business and the individual perpetrators is a very real risk in discrimination cases.
