‘Banter’ cases continue to be relatively common at Employment Tribunals. There were 66 in the past year where the defence was that the jokes involved were “friendly banter” and not bullying or harassment — a defence that only had occasional success.

Examples from a study into last year’s cases include someone suggesting an Asian employee might have a bomb in their bag; and a ‘joke’ about who was “going to bring the drugs and knives” to the planned ‘carnival’ food event at work

Technically, for comments at work to be considered banter and not a cause of offence, an employer will need to show that the conduct involved either didn’t actually offend the ‘victim’, could not have reasonably offended them, that the conduct wasn’t related to a protected characteristic (like race or ethnicity, gender or sexuality), or that the ‘victim’ joined in with the ‘joke’.

Employers know that humour at work is a positive thing, an essential part of friendships and encouraging a sense of community, often a release valve for pressure. So no-one wants to ban or limit jokes and harmless forms of teasing, it’s part of the everyday buzz, why people want to be at work. With the increasing range of protected characteristics and greater sensitivity generally among staff to what might be discriminatory and offensive, it can look like an impossible situation for banter: how do you provide guidance? is it really just common sense? do jokes need some kind of vetting? This is serious, especially now, when an employer can become liable for comments made outside office hours on social media.

In reality, HR is looking at the problem from the wrong direction. It’s not a matter of making sure people only tell genuinely funny jokes, the ones where no-one could possibly find any scrap of offence. The root issue is that staff feel they have no choice but to store up their negative feelings, when they believe they are being unfairly singled out, picked on, bullied. They don’t feel able to signal that they are offended, that the joke just wasn’t funny. So, in other words, the banter problem is one of culture and politics. If everyone, at every level, feels able to be open, and deal with those more difficult conversations about being offended, then the question of what constitutes friendly banter and what doesn’t, is worked out in the right way: among people themselves, and not by formal processes which struggle to cope with so many grey areas.

Formal, process-driven cultures lead to more secrecy and the kinds of working conditions where problem situations are able to degenerate. Just pointing a finger at the evils of harassment in itself only encourages secrecy, more people working harder to stay under radar, and more insidious forms of bullying and harassment.

The best response from HR would include:

• looking at a strategic level at how to build a culture of better conversations, how they can encourage more honesty, more conversations that deal with root issues of power and inequality — in other words, making constructive challenge a normal and healthy part of the workplace culture. HR need to ask whether their systems and approach are fair and just, do they lead to the kind of confidence that encourages a ‘victim’ to come forward?;

• encouraging leaders to demonstrate visibly the kinds of skills and behaviours expected by employees. Too often development is only provided for senior teams and managers when there’s an issue — a change programme, reports of poor engagement or cases of bullying. Some managers have the in-built skills needed to manage conflict constructively and keep their values in place, some others need support;

• management programmes being reviewed to ensure they include the conversation skills used to keep expected behaviours at the heart of work interactions and relationships, to have constructive, positive conversations no matter what the situation is. The result is more engaged, productive and self-managing teams;

• giving training to all employees to help them have better conversations, be able to deal with difficult situations, be prepared to be challenging when necessary, to stand up to perceived bullying or inappropriate ‘banter’, not to instigate disputes but to have the ability to raise and resolve issues themselves. In this way employees become accountable and in a position to live out the organisation’s values in practical ways every day, to see and feel their relevance. There is also a fundamental equality in practice, with everyone having the opportunity to use their skills, not to be the subject of them.