UpdateBanter or Bullying?

March 17, 2021

In recent years, there has been a rise in the use of words like “banter” and “just kidding.” This has been seen not only in people’s personal lives, but now in the workplace too. This has led to the question of where exactly the line is between sharing a joke with a colleague and inappropriate behaviour that leads to someone feeling uncomfortable, even harassed. The recent case of Hurley v East Sussex Healthcare NHS Trust has shed some light on this, and saw an award of £10,000 being granted following a successful constructive dismissal claim based on this question.

The claimant, Mrs Hurley joined the NHS trust in October 2016 and was immediately faced with a minimal amount of training for her role as well as a difficult workload. Amidst these immediate challenges and without adequate training, Mrs Hurley’s workload increased substantially when a colleague left which caused Mrs Hurley such a significant amount of stress, she was signed off sick from work.

Upon her return and during a further period of intense work, her manager decided to play a practical joke. This entailed emailing Mrs Hurley near the end of the day to “remind” her that she had a very important 3-hour presentation to deliver the following morning. To make the joke seem more real, Mrs Hurley’s manager actually persuaded other colleagues to corroborate her story and further stress out Mrs Hurley, only to send an email later in the afternoon saying “only joshing.”

The court focused on the case of Malik v BCCI when stating that an employer must not conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence that as an employer, they have a duty to uphold. The court made reference to the word “likely” and highlighted that the actions of the employer need not have been planned or intended to ruin the trust and confidence that should exist between employee and employer, but need only be likely to do so. The court did not hesitate on this point and were clear that the actions of the manager were at the very least, likely to destroy or seriously damage the relationship.

The question therefore in this case, was whether Mrs Hurley waived her right to constructive dismissal and affirmed her employment contract. This question ultimately came down to what the final straw was that led Mrs Hurley to resign. From the perspective of the employer, it was claimed that a delay in Mrs Hurley’s appeal against her grievance outcome was the final straw. However, the judge disagreed with this and instead was of the opinion that the final straw was the outcome of the grievance itself, when there was no finding of intentional bullying or undermining by her manager. Furthermore, the tribunal looked at the entire period of time during which Mrs Hurley was isolated, pranked and ultimately decided that Mrs Hurley was absolutely entitled to resign, and decided that the exact point of this “final straw,” was actually not “significant.” The isolation continued until the end and Mrs Hurley was forced to accept a new job, for lesser pay and further away. Mrs Hurley was awarded just under £10,000.

The impact of this case is yet to be seen but it is important for employers to be aware of the outcome, and to monitor any banter/practical jokes that may be seen in their workplaces. W Legal are able to provide any assistance and/or training in this area and would love to answer any questions either an employer/an employee may have.

If you feel that you would like to have a confidential discussion with our employment department, please get in touch with Charlotte Turnbull at charlotte.turnbull@wlegal.co.uk

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