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The colossal legal costs of office banter, secret Santa

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Festive season could cost UK businesses up to GBP292bn in tribunal claims. Office banter could cost businesses up to GBP292bn in tribunal claims in 2013, according to a study by Allen & Overy.

UK employers are warned to make sure that their employees exercise caution when 'joking around' with colleagues, as what may be seen as innocent banter or a funny gesture to one person can often be interpreted as quite the opposite by another, and may, perhaps, even result in a discrimination claim. As we enter the new year, following a festive season jam-packed with office parties, secret Santas, and long boozy lunches, Allen & Overy asked over 1,000 UK workers if they could easily draw the line between banter and unlawful bullying. Reassuringly, 80 percent said they could draw the line; but when asked to identify unlawful comments, the responses suggested otherwise:

Secret Santas
Nearly one in two, 46 percent thought it wasn't unlawful to display a calendar of a male or female semi-naked model. Although some may appreciate the human form, others may feel it creates an intimidating, hostile, degrading or offensive workplace environment, which can lead to a harassment claim. Potential cost to UK businesses: GBP135bn

Bad language
59 percent of respondents felt it wasn't unlawful to swear. To some extent they are correct, but swearing based on a legally protected characteristic such as gender, sexuality, race etc can lead to a discrimination claim. Potential cost to UK businesses: Between GBP114GBP292bn

59% felt blaspheming wasn't unlawful; but for a religious colleague this may be seen as hostile and offensive and might form the basis of a religious discrimination claim. Potential cost to UK businesses: GBP292bn

Office romance
78 percent of workers felt sending a work colleague an anonymous card and chocolates wasn't unlawful. What the workforce might not appreciate is that a benign gesture such as this could turn into a harassment claim, particularly if the person receiving the gift is in a relationship and has made it clear that s/he is not interested. Potential cost to UK businesses: GBP229bn

Inappropriate language
38% felt it wasn't unlawful to refer to a colleague as 'coloured'. A one-off comment may go under the radar but if a person makes it known that this is considered to be an offensive comment and the perpetrator persists, it could lead to a race discrimination claim. Potential cost to UK businesses: GBP114bn Allen & Overy's employment partner, Karen Seward, says: “The festive season is often a favourite one with workers and a rare chance to enjoy a few drinks with colleagues. But once the lights go on and the party finishes, employers can be left with disciplinary headaches. There's a fine line between friendly, acceptable banter and unlawful harassment/discrimination, but encouraging and educating workers to stay on the right side of the line is not as easy as it sounds. Time and time again, workers throw advice in this area into the 'political correctness' box, not appreciating the litigation risks or the impact on individuals. But they should do so at their peril, as an employee can be made personally liable for a discrimination claim under which compensation is unlimited”.

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