August 26, 2016

When banter goes bad – the problem of workplace violence

Recent research and the high-profile case involving the mock crucifixion of a Catholic apprentice have shed light on the scale of the problem of workplace violence.

Separate studies have shown that:

  • Almost half of all HR departments have seen increased numbers of disputes between colleagues;
  • 1-in-7 HR professionals reported instances of feeling threatened physically whilst at work, and:
  • 1-in-8 people had experienced some form of violence whilst at work.

Most people would accept that overt acts of violence against colleagues or members of the public are completely unacceptable.

Frankly, if one of your employees takes it upon themselves to violently assault another employee there is probably very little you could have done to prevent it.

Policies and procedures informing employees they should not be assaulting each other should not really be necessary, should they?

However, there are occasions when individuals do not even consider that what they are doing constitutes violence (or pretend to themselves that it doesn’t).

To some, it’s merely ‘banter’.

Going too far – workplace violence when you’re ‘only having a laugh’

Four men, two of whom were convicted, were recently charged with the criminal offences of religiously aggravated assault and harassment of a Christian work colleague.

The apprentice, a teenager and practising Roman Catholic, suffered indignities the Crown Prosecution Service believed went far beyond what could be described as banter, albeit that is how likely to be how it started out.

The apprentice was tied to a wooden cross, hung from a wall in a manner resembling crucifixion and had obscene symbols drawn upon him using a permanent marker. On another occasion he was pulled from the ground by his underwear, resulting in cuts and bruises to his buttocks.

The accused denied the charges, but two of the four employees were convicted and sentenced to community service and fines.

Certainly some think they could have received custodial sentences.

Blurred lines – employers need to sharpen up on workplace violence

This was by any standards a very serious matter, and instances like this are thankfully likely to be relatively rare.

However, what it does illustrate is the sometimes blurred lines between what is ‘banter’ and what is harassment.

On top of criminal charges as in this case, employers can also find themselves subject to employment tribunal proceedings if any unwanted conduct occurs in the workplace – particularly if the basis for any such treatment is a protected characteristic such as religious belief, race, sex or disability.

Employers are under a duty do all they reasonably can to ensure that harassment and any other discriminatory conduct does not take place in the workplace.

A failure to do so could render an employer vicariously liable for the treatment of one employee by another.

However, where an employer does take all reasonable steps, and an employee nevertheless takes it upon themselves to commit an unlawful act, then the employer may be able to avail themselves of the statutory defence in discrimination claims brought under the Equality Act 2010 – that’s to say the employer may not be liable so long as they can say they show they took all reasonable steps to avoid discrimination in the workplace.

In this context, reasonable steps relates to education of employees in equal opportunities and anti-discrimination/harassment.

This can include having, and making staff aware of, the relevant policies.

It can also include organising training for staff in what to look out for, and how to understand that their conduct may be inappropriate even if they do not realise it. Education of staff is key, and an employer also needs to show that they actively enforce relevant policies, rather than just pay lip-service to them.

Discrimination in the workplace can be very costly, but also extremely disruptive to your day-to-day operation. Our consultants are able to assist you in reviewing your existing policies and practices – contact the team to ensure you are best placed to protect your business moving forwards.

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About the author

Stuart Morley

Having then been awarded a scholarship from the Bar Council, Stuart sat his Bar exams in Manchester and was called to the Bar of England and Wales in October 2002. Since then, Stuart has worked as an Employment Tribunal Advocate, handling all aspects of employment advice and litigation at hearing centres across the UK.