We deliver regular equality training to our clients. During these sessions we explain that office banter can lead to claims for discrimination. One of the questions that is always asked by the participants is “does that mean we cannot have some fun in the office?”
The simple answer is no – you can have some fun but to keep an eye on the level. Indeed, we now have some case law that backs this up.
Usually when an issue arises in the workplace over something someone has said, we are told “they didn’t mean it like that – it was just office banter”. This is enough to make any HR advisor shudder and crawl under the desk hoping that comment was just a dream! However, in the recent case of Evans v Xactly Corporation Ltd 2018, it seems that we can breathe a slight sigh of relief – context is everything. Indeed, as long as an employer can show that there is a culture of such banter, the employer may have a partial defence.
By way of background, Mr Evans was a sales representative. The office that we worked in was one where office banter was prevalent. Mr Evans suffered with Type 1 diabetes and hyperthyroidism. Mr Evans was also known to have relations who are travelers.
He, along with his team, did not make their sales targets and as Mr Evans had less than 2 years’ service he was dismissed. He then brought a claim in the ET saying that he had raised issues that he was being picked on because of his weight. he claimed this was the real reason for this dismissal. His claims were for:
- Unfair dismissal;
- Discrimination arising from a disability;
- direct discrimination;
- harassment (race related); and
His claim was that during his employment his colleagues made comments to him such as “salad dodger”,“fat Yoda”, “Gimli”, and “fat ginger pikey”.
His claim for disability discrimination failed. This was because despite his disability he could not prove that this or his Hyperthyroidism caused him to be overweight. Therefore, he could not link the comments about his weight to his disability.
His claim for race related harassment also failed. He needed to show that he had been subjected to unwanted conduct relating to a protected characteristic. This also must have the purpose of violating the person’s dignity, or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to them.
The Tribunal looked at the environment in the office. They concluded that this was one where banter was common place and indeed the “victim” regularly joined in. He had called one colleague a “fat paddy” and another female colleague a “pudding” whilst trying to hug her. Although, Mr Evans (the victim) was the only one who was spoken to about the behaviour, he only raised an issue with this after the employer had begun looking at his performance and that of the team. The Tribunal therefore decided that Mr Evans had not been harassed as defined by the Equality Act.
His claim failed because despite the comments used about Mr Evans were demeaning and unpleasant, as he knew that no offence was intended by the comments. Indeed he had himself made similar comments and therefor there could be no harassment.
So the final answer for all of those who ask us if “office banter” is acceptable is a difficult one. This case is not a complete defence and is very fact specific – We think the employer was very lucky to escape liability here. The best remedy is to be respectful and kind in the workplace and for such “banter” to be kept to a minimum. You never know who is listening outside of your organisation – such as a client on the telephone to another employee!!
It is also a very useful reminder that employers need to keep careful, up to date, records. When it came to their defence, the documentation that the employer kept showing that the employee had entered into the same banter as everyone else was invaluable.