Case update: Banter and reasonableness

However, such an approach is unlikely to be sustainable in practice. Workplaces are naturally inhabited by human beings. In-jokes and ‘friendly banter’ are, to an extent, human nature and a significant part of human interaction. A zero-tolerance approach might also following the recent case of Richardson v West Midlands Trains Ltd, lead to a risk of legal claims against the employer.

In this case, Mr R left a tarantula skin and snakeskin in the pigeonhole of a colleague who, he knew, disliked spiders and snakes. He was subsequently dismissed for gross misconduct without any notice. The employment tribunal found he had been unfairly dismissed and ordered that he should be re-instated. The tribunal acknowledged that the Claimant’s conduct was misconduct, but it was not serious enough in all the circumstances to amount to gross misconduct and to justify immediate dismissal.

The tribunal provided some helpful guidance on acceptable ‘banter’:

• Context is very important;
• Employers should seek to understand the employee’s motivation in performing the prank; and
• Continuing a prank after being asked to stop could be a more serious offence than the prank itself.

Employers who are faced with a misconduct allegation which has its roots in ‘banter’ should take account of these tips when considering the most appropriate sanction and always ensure a thorough investigation takes place, all other procedural requirements, without forgetting to ensure that the decision is reasonable in all the circumstances

We can help guide you through disciplinary processes – please give us a call for an initial, complementary chat: 01635 896336.