Workplace banter - Legal framework and current standards
Published on 19/08/25
Following on from our recent article about the changes to the Employment Rights Bill, Sergio Abreu from ARAG Law takes a look at how UK employment law draws the line between light-hearted workplace banter and behaviour that crosses into harassment or discrimination and how tribunals distinguish between humour and harmful conduct, especially under the Equality Act 2010.
The key is understanding that the difference between humour and harmful conduct is connected to consent and subsequent impact of the behaviour. Points to note;
- S26 of the equality act defines harassment as “unwanted conduct related to a relevant protected characteristic” that has the “Purpose or Effect of violating another’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment."
- Effect over purpose means that intention is unlikely to act as defence to harassment as the impact is judged from the claimant’s perspective.
- It is also important to consider the circumstances in which the conduct has taken place and who was involved. Unwanted conduct may not immediately be obvious and there may also be power imbalances at play when conduct was deemed to be accepted or wanted. See - Munchkins Restaurant Ltd and another v Karmazyn and others [2009] – Owner engaged with inappropriate behaviour w/ staff – the female staff were frightened of repercussions and went along with some of the behaviour before finally putting in complaint.
How do existing legal protections apply when workplace banter involves third-party clients or contractors rather than direct colleagues?
Employers are not liable for conduct that amounts to harassment from third parties unless the failure to protect the employee from said harassment amounts to discrimination itself.
Probing the scope of employer liability and whether current laws adequately protect employees from external sources of inappropriate behaviour.
Impact of Proposed Legislative Changes
How will the proposed ban on non-disclosure agreements (NDAs) for harassment and discrimination claims affect how employers handle complaints arising from workplace banter?
The employer will potentially be placed in a scenario that forces them to investigate more thoroughly into complaints relating to discrimination and harassment. A failure to do so will potentially have a greater impact on how tribunal will view the claim. Greater accountability is a good thing.
The July 2025 amendments to the Employment Rights Bill would make NDAs unenforceable in cases involving workplace harassment or discrimination, potentially increasing transparency and accountability.
What implications do the proposed changes have for HR policies and training programmes aimed at preventing inappropriate banter in the workplace? How does this encourage employers to consider proactive cultural and procedural shifts in light of the legislative direction.
- Greater accountability and pressure on the employer to operate up to date training. The training and policies would likely need to be under strict review. Similarly to how sexual harassment training is managed. There is an obligation on an employer to take reasonable steps to prevent/anticipate sexual harassment.
- Employers are not required to take reasonable steps to prevent other types of harassment, however the Laws shift towards greater accountability may force employers to take a wider approach. For example, it may become beneficial to introduce stricter regimes regarding workplace banter.
- The issue is here that the act has not been implemented yet and is still subject to change going forward.
Practical and Cultural Considerations
Could the removal of confidentiality clauses lead to a rise in public disclosures about workplace culture, and how should employers prepare for that possibility?
Yes. If a company is unable to prevent former employees from discussing or reporting harassment, then there could be an impact on the business going forward. The focus would need to be on taking accountability for actions as well as implementing strict systems for training. There will also be greater importance put on creating appropriate pathways for employees to report concerns for investigation purposes.
How can employers preserve morale and camaraderie without crossing legal or ethical lines?
Employers should be maintaining strong anti-harassment policies and provide consistent refresher training. The aim is to act in a preventative manner, similar to that of the preventative duty connected to sexual harassment – Worker Protection (Amendment of Equality Act 2010) Act 2023.
The safest path for an employer is to maintain that the workplace is a professional environment and that conduct between employees is to be consensual and respectful. There is no one shoe fits all approach.
If you're unsure whether workplace banter has crossed a legal line—or want guidance on updating your HR policies in light of the Employment Rights Bill—ARAG’s legal advice helpline is here to help. Our experts offer confidential, practical support on harassment, discrimination, and employment law issues.
Disclaimer - all information in this article was correct at time of publishing.
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