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Office banter – strikes fear into the hearts of employers

4th February 2019

Morisons Solicitors Jacqueline McCluskeyThe phrase “it was only office banter” strikes fear into the hearts of every employer. Often discrimination cases involving name-calling and banter are settled by the employer before any employment tribunal hearing. Therefore the recently reported case of Evans v Xactly Corporation Limited makes for interesting reading for us all.

Mr Evans worked for Xactly Corporation in an office environment where there was a culture of banter. The banter was pretty extreme. He suffered from type 1 diabetes and had links to the travelling community. He worked as part of a sales team who were all performing poorly.  He was dismissed for poor performance. He had less than two years’ continuous service to bring an ordinary unfair dismissal claim so had to consider other options. So he brought discrimination claims in the employment tribunal arguing, amongst other things, harassment on the grounds of disability and race.

He referred to various occasions during his employment when he was called a “salad dodger”  “fat Yoda” and “fat ginger pikey” by his colleagues. But the banter wasn’t all one way. Mr Evans called one of his colleagues “fat paddy” and another one “pudding”. The “c” word was also used often by Mr Evans and his colleagues.

The claims of disability discrimination were unsuccessful. The employment tribunal found that although he was disabled as a result of his type 1 diabetes, his diabetes did not have a real impact on his weight. Therefore the insulting comments made about his weight were not sufficiently connected to his disability.

The employment tribunal then considered the racial harassment claims. Members of the travelling community are protected under the Equality Act 2010 as being of a particular race. Mr Evans argued that the comment about him being a “fat ginger pikey” amounted to race related harassment.

In order to succeed in a race related harassment claim Mr Evans needed to meet a two stage legal test: (1) that he had been subjected to unwanted conduct relating to his race (2) that the unwanted conduct had the purpose or effect of violating his dignity or creating an environment which was intimidating, hostile, degrading, humiliating or offensive to him.

On the facts, the employment tribunal found that the office environment was one where there was a culture of banter amongst colleagues, including Mr Evans. It found that this banter appeared to be accepted and treated as normal within the office.  It found that Mr Evans did not express any upset or complain about the comments directed towards him until the employer began to scrutinise the poor performance across the sales team. It found that the comment “fat ginger pikey” was derogatory, demeaning, unpleasant and potentially discriminatory.

However, the employment tribunal decided that the two stage legal test of race related harassment had not been established. This was because:

(1) Mr Evans had played an active part in the culture of banter and therefore the comments which he received were not unwanted;

(2) The comments did not have the purpose of violating his dignity or creating an intimidating environment for him as they were said in the context of two way banter;

(3) The comments did not have the effect of violating his dignity or creating an intimidating environment as he was not offended; and

(4) It was not reasonable for him to have considered that his dignity was violated or the environment was intimidating given all of the circumstances of this case.

Clearly, employers should not assume that office banter which goes two ways is acceptable or that it will be difficult for employees to bring successful legal claims as a result of office banter. There were particular circumstances in this case such that it was found that Mr Evans was a willing participant in the behaviour and there was limited knowledge of his links with the travelling community.

The media is full of stories about workplace culture and behaviour. Therefore it is vitally important for employers to ensure that the environment is professional and free of potentially offensive comments, even where these are not intended to cause offence or upset.

Any suggestion of such potentially discriminatory conduct should be investigated promptly by the employer and an action plan put in place, including disciplinary action and anti-discrimination training.  For SMEs, having the time and expert employment law resource available to do so can often be the biggest challenge.

If you need assistance to trouble shoot any of the workplace issues raised in this article please contact Jacqueline McCluskey.

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