“Banter” – where to draw the line?
Ian Machray explains a recent case which explored the boundary between banter and harassment.
In a recent case the Employment Appeal Tribunal (EAT) considered whether calling someone a “fat ginger pikey” constituted harassment.
The case concerned Mr Evans who was employed as a sales representative at Xactly Corporation Limited and was dismissed due to his poor sales performance. Following the dismissal, Mr Evans brought several claims including a harassment claim on the grounds that he had been called a “fat ginger pikey”.
The EAT commented that the phrase was derogatory, demeaning, unpleasant and could potentially amount to discriminatory treatment and harassment, particularly as the individual had links to the traveller community. Nevertheless, in reviewing the decision of the Employment Tribunal (ET), the EAT found that the ET had committed no error of law and was entitled to reach the conclusion that the legal test for harassment had not been satisfied on the specific facts.
Harassment is defined under the Equality Act 2010 as unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The ET analysed the office culture, the context of the comments and Mr Evans’ relationship to the comment maker. It was held that the comment was not unwanted conduct due to Mr Evans’ participation in the “banter” culture. It was noted that another colleague had described the “banter” as an extension of Mr Evans’ friendship with his co-workers.
The ET also did not accept that the comment had the purpose or effect of violating Mr Evans’ dignity nor did it create an intimidating environment. On the contrary, the ET found that jibbing and teasing were common place and took into account that Mr Evans did not react or complain at the time and had socialised with the comment maker both before and after the incident.
Despite the outcome of this case, employers should note that the decision in this case was highly fact specific. Employers can be liable for harassment in the work place, even if the harassment is carried out without the employer’s knowledge or approval and without intending any adverse impact. We advise employers to ensure that they continually assess their workplace culture to help minimise the risk of “banter” being considered harassment.