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Where to draw the line with workplace gossip

With litigation in the workplace on the rise - and which so often involves jokes based on protected characteristics such as race, nationality,

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Where to draw the line with workplace gossip

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With litigation in the workplace on the rise – and which so often involves jokes based on protected characteristics such as race, nationality, age or gender – the question of what is friendly teasing vs harmful bullying is becoming increasingly an issue.

What is the difference between harassment in the workplace and discrimination? How can you as a small business owner-manager educate employees on where to draw the line? How can you protect staff from hurtful remarks made in the name of workplace grumbling, and – if they do occur – how should you handle the situation appropriately so that it does not have to go to court?

> See also: The right to return to work after maternity leave

What is the difference between harassment in the workplace and discrimination?

Jokes and jokes can be more common in some workplaces than in others. “Banter” is understood in colloquial language as light-hearted remarks or well-meaning teasing. While this may be a sign of a happy and relaxed workforce, such behavior can amount to discrimination or harassment, especially if it is at someone else’s expense.

The Equality Act 2010 contains provisions that protect individuals from discrimination on the basis of a “protected characteristic”. These include age, disability, gender reassignment, marriage / civil partnership, race, religion or belief, gender and sexual orientation.

The law protects individuals from being treated less favorably by someone because of their protected trait. The law also prohibits harassment. It is defined as behavior associated with a protected trait that has the effect of violating someone’s dignity or creating an intimidating, degrading, hostile, offensive or degrading environment.

Determining where the boundaries lie between joking and discrimination is often assessed on a case-by-case basis. Whether something is grumbling or discrimination can turn on what has been said, by whom, to whom, the subject and the impact on the individual. Whether mockery was innocent and was not intended to offend is irrelevant – it is the effect on the individual that is most important.

> See also: How to deal with sexual harassment in your small business

How should employers educate their staff on where to draw the line?

Employers have a responsibility to prevent bullying and harassment in the workplace.

Compulsory respectful workplace training must be given to all staff, regardless of their role or seniority. In addition, regular refresher sessions (at least every two years) should be provided – relying on outdated training is not enough.

Additional support and training should be provided to managers to help them detect inappropriate workplace behaviors and ensure that they are resolved at an early stage. Very often, if bad behavior is identified and dealt with quickly, it can avoid escalating issues that can be very detrimental to workplace morale – especially within a team environment.

Promoting a respectful workplace culture is essential. Four diversity – often the most successful and productive companies are the ones that are the most. So give staff the tools and confidence to be able to talk when they see bad behavior rather than being too scared (perhaps for fear of retaliation from other team members) that they might accidentally indulge.

Having a good set of policies and / or staff handbook, with which all staff are familiar, will help ensure that everyone is aware of how to behave at work.

How can employers protect staff from hurtful remarks made in the name of workplace grumbling?

Employers who provide training and have clear policies on maintaining a respectful workplace have already put in place measures to protect employees. Staff should be aware of the standards of behavior expected of them.

When a situation arises where mockery has gone too far and caused uproar, the issue can hopefully be resolved informally. Situations like these are where management training is essential to mediate and ensure that all parties involved understand why the behavior was inappropriate or hurtful and why it should not happen in the future. This may be a case of reminding the offender of their training and the relevant company policies and issuing an apology to the affected employee.

For more serious situations where the mockery is discriminatory or potentially discriminatory, or has caused serious upset, it would be appropriate to deal with the issue formally in accordance with relevant company procedures such as disciplinary policy.

If workplace scams cross the border, how should it be handled so that it does not go to court?

If it has not been settled informally, or the gossip is serious enough to provoke a company policy response, it will be necessary to follow the company’s disciplinary policy.

Every employee has the right to bring employment tribunal proceedings if they wish and it is not appropriate for an employer to try to prevent their employee from doing so.

An affected employee may raise a grievance in accordance with their employer’s grievance policy. Their employer must then act immediately without unreasonable delay to investigate the grievance by the appropriate measures. It is important to ensure that the employee is aware of the process and probable date of termination of the investigation.

After such an investigation, the employer will have to consider appropriate action depending on the circumstances. The employer only needs to do what is reasonable, but must explain their decision carefully and sensitively to the employee. The recommendations arising from a grievance investigation will be fundamental in determining whether or not it is possible to repair a damaged employment relationship between the affected parties.

If it is found that the mockery took place and amounts to misconduct or gross misconduct, the employer must take disciplinary action against the offender.

Daniella McGuigan is a partner at the employment law firm Ogletree Deakins

Further reading

Small Business HR – Everything You Need To Know

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