Just Workplace Banter? The Law Might See It Differently

Jude Fletcher

Jude FletcherSenior Partner at Fletcher Day

Thursday, September 19, 2019

Lawyers asked their professional opinion would probably comment that banning workplace banter is usually far and away the safest option when it comes to avoiding lawsuits.

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They would, however, probably also acknowledge that in the real world this is easier said than done.

Basically, employers are facing much the same issue as social media companies, namely that speech is very much context-specific and therefore can’t be effectively managed through hard-and-fast rules regardless of whether they’re managed by HR departments or by automated algorithms.

That’s why social media companies use a combination of automated rules, community guidelines and human moderators. The same approach can also work in an employment situation.

Automated rules

It’s (currently) impossible to apply automated rules to verbal conversations, but it is perfectly possible to apply them to written ones and these days, a lot of workplace communication takes place over written channels such as email and messenger, even informal communications and even when employees are physically in the near vicinity of each other.

As previously mentioned, “algorithmic” approaches have their limitations. Employers should expect some grumbling about them and also some reports of major “false positives”, some of which will need to be corrected. They can, however, act as very useful baselines and as a minimum can flag to employees themselves when they may be crossing a line.

Community guidelines

In an employment context these are more commonly known as equal opportunities and anti-bullying and harassment policies, but it’s essentially the same idea and hence they work to much the same principles.

In particular, these policies have to be realistic and fair, they need to be communicated to staff (if you expect people to follow rules they have to know what they are) and they need to be applied consistently. It’s impossible to overstate the importance of this last point.

There can be a significant difference between stated policy and actual standard practice, which means that companies need to be seen to be taking all reasonable measures to enforce their rules appropriately if they are to protect themselves from lawsuits either by stopping them from occurring in the first place or by defending themselves against them if they need to.

Human moderators

In a workplace environment this will usually mean the HR department.

HR will typically have the responsibility of making sure staff are aware of what is expected of them, what to do if they have an issue and what they can expect to happen if either they raise a concern or a concern is raised against them.

Given that most employers would prefer to avoid having to deal with concerns at all, it could be very helpful to provide staff with regular “bite-sized” training sessions with relevant examples of what is and isn’t acceptable and why.

The key words in that sentence are “bite-sized” and “relevant”. Mandatory “sensitivity” training at the start of employment (or even on an annual basis) is unlikely to go down well with people, especially when they’re busy. It may even have the opposite of the desired effect. Little, often, relevant and, preferably, entertaining is generally the best way to go.

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