The “banter” defence – does it ever succeed?
It is a truth universally acknowledged that the word “banter” fills employment lawyers and tribunals with dread. In reality, there is no such thing as the “banter defence” save as some sort of urban myth. Cases in which a witness says things like “it was only banter” or “they had a sense of humour failure” are usually cases where the “banter” was in fact misconduct or an incidence of discrimination.
In terms of conduct, “banter” cases normally fall squarely within section 98(2)(b) of the Employment Rights Act 1996 as cases in which it is potentially fair for an employer to dismiss employees if the employer can demonstrate, in line with the test in British Homes Stores v Burchell  ICR 303, that it had a genuine belief, based on reasonable grounds, following a reasonable investigation, that the employee was guilty of the misconduct alleged.
In the recent case of Boulter v Robin Pochin Limited at Leicester Employment Tribunal (Case Number 2601646/2019), the Claimant, a plumbing and heating sales representative, succeeded in his claim for unfair dismissal on procedural grounds despite having called senior managers “Twit” and “Twat” in a text message to a customer, and having previously described one of those managers as a “bastard” on another occasion. Employment Judge Batten found that the Respondent had established the genuine belief, based on reasonable grounds, that the Claimant was guilty of gross misconduct, and noted that the text message was not the only example of the Claimant being abusive about the Respondent since the reorganisation of the management of the sales department.
However, the Claimant succeeded in his claim because the Respondent failed to satisfy the Tribunal that it had carried out a reasonable investigation. The Respondent used the same officer for both the investigation and disciplinary process. Further, one of the senior line managers who was the subject of the abuse was present throughout as a notetaker, despite the fact that other employees were available. At the investigation stage, the Claimant had asked the Respondent to speak to his colleagues, but was never provided with their statements. Those statements were not supportive of the Claimant but the Claimant did not therefore know the full extent of the case against him or have the opportunity to consider someone else who may have been supportive of him.
The defects in this process were not remedied by the appeal. Further, the appeal process was handled by someone who had both knowledge of and involvement in the investigation and disciplinary stages. The appeal officer failed to deal properly with the Claimant’s grounds of appeal that his comments were “banter”. The appeal wholly failed to address the Claimant’s arguments in relation to inconsistent treatment of other identified employees who he said had not been dismissed for similar conduct.
However, given the conduct found proven by the Tribunal, the Claimant’s unfair dismissal award is to be reduced by 50% on the basis of his contributory conduct, and the principle in Polkey v AE Dayton Services Ltd  IRLR 503, providing further proof, if needed, that the “banter” defence does not succeed. A remedy hearing will follow.
Gillian Crew acted for the successful claimant