Now that the silly season is well and truely over, I suspect that there will have been some fall-out from the various parties that took place. Various conversations potentially happened with individuals perhaps being filled with a sense of courage that comes with a few drinks. Comments were made that would not ordinarily have been made and differences that were not visible suddenly became apparent.
The word that most HR professionals fear when picking over the bones of a dispute are that it was just “banter”. That tends to suggest that something offensive has been said, with the defence being that it was not meant to cause any offence as it was said in jest. The concern for most employers is that such a defence is unlikely to go down well at an employment tribunal, however there was a recent Employment Appeal Tribunal case towards the end of last year that clarifies the importance of context when considering a defence of “banter”.
In that case, the claimant was a sales representative. He suffered from type 1 diabetes and hyperthyroidism. He also had some links to the travelling community, albeit only one of his colleagues was aware. Evidence before the tribunal was that within the office, there was a culture of banter.
The claimant’s performance was poor within an underperforming team and ultimately he was dismissed, before he obtained his 2 years’ service for claiming unfair dismissal. Regardless of not being able to claim unfair dismissal, he lodged claims for discrimination on the basis of his disability and race. The evidence presented to the tribunal was that during his employment he was called a “salad dodger”, “fat Yoda”, “Gimli”, and “fat ginger pikey” by his colleagues. He alleged that he was disciplined and eventually dismissed for raising such treatment as an issue.
Whilst type 1 diabetes and hyperthyroidism can lead to someone being overweight, the tribunal felt that the claimant had not produced enough evidence that his diabetes or his hyperthyroidism had a real impact on his weight. Therefore, any claims which sought to rely on insulting comments made about his weight could not arise from or be connected to his disability and failed.
This left the claimant’s allegations of race-related harassment, which required the claimant to show that he had been subjected to unwanted conduct relating to a protected characteristic, and that the unwanted conduct had the purpose or effect of violating his dignity; or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to him.
In considering this test, the tribunal looked at the behaviour within the respondent’s office. They determined that teasing and banter was common. Indeed, the claimant himself would often reply in kind, referring to a colleague as a “fat paddy” and a female colleague as a “pudding”. This behaviour appeared to be accepted and treated as normal within the office, which the tribunal described it as “indiscriminatingly inappropriate”.
The tribunal also considered it relevant that the claimant only ever raised any concern about the comments being made about him after the performance management procedure, which ultimately led to his dismissal, had begun.
the Employment Appeal Tribunal did not overturn the decision and they referred to a really useful passage from another EAT decision (Richmond Pharmacology v Dhaliwal UKEAT/0458/08), in the judge stated that “dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended.”
Whilst the employer successfully defended this claim, it would not have done their reputation or office morale any good. Rather than rely on the defence that such comments are only banter, it is much safer to ensure that this type of conversation is challenged and ideally eradicated from the workplace. All employers will be expected to demonstrate not just that they have some form of equality and diversity policy, or some sort of anti-bullying and harassment policy, but they are taking steps to make sure there is a supportive and collaborative work environment.
If you feel that you need to challenge behaviour within your work environment, but are not sure how best to tackle this, then call our Employment Team to discuss the most effective strategy and training that will be required for all your staff.
Case: Evans v Xactly Corporation Ltd UKEAT/0128/18.
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The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.