Workplace banter may be dismissed by some as innocuous but the recent press coverage of the Yorkshire County Cricket Club case shows that this is a risky approach to take.
If banter goes too far it can amount to unlawful discrimination
or harassment under the Equality Act 2010. Nobody wants a workforce
full of robots and having personality is important, particularly in
service industries such as leisure and tourism. But do your
employees know where to draw the line?
Can banter ever be a defence to harassment?
In Evans v Xactly Corporation the Employment Appeal Tribunal
(EAT) held that calling a colleague a "fat ginger pikey"
did not amount to harassment. The Claimant was sensitive about his
weight and had strong links with the traveller community. The
tribunal found that although the comment was potentially
discriminatory it was made in the context of a workplace culture of
good-natured jibing and teasing among competitive staff. The
Claimant was an active participant in this culture of inappropriate
comments and behaviour and seemed happy with the environment in
which he found himself. There was also evidence that at the time
the remark was made the Claimant did not take exception to
it.
The tribunal found, and the EAT agreed, that the treatment did not
satisfy the definition of harassment in the Equality Act 2010 and
therefore the claim did not succeed. However, this really was very
fact specific and participation in banter will rarely get a company
off the hook.
When banter goes too far
Sometimes the comments will cross the line and employers should
note that just because banter has been standard for many years does
not always mean that it will be acceptable.
In Smith v Renrod, the Claimant claimed that she had been sexually
harassed by her manager. The tribunal found that there was a
culture of sexual banter and sexual behaviour in the workplace
which both the Claimant and her manager actively participated in.
However, it found that comments made by her manager went too far
and was unwanted conduct. The tribunal took into account that it
would be harder for the Claimant to deal with and complain about
the behaviour of her manager than that of her other
colleagues.
Sometimes an employee might have been taking part in the banter as
a coping strategy to cope with a difficult situation. This was
demonstrated in the EAT case of Munchkins Restaurant Ltd and
another v Karmazyn and others. The Claimants were waitresses who
worked for Munchkins Restaurant Ltd, which was run by the 73-year
old controlling shareholder, Mr Moss. The Claimants were all
migrant workers from Europe with relatively short periods of
service. They alleged that throughout their employment they were
made to wear short skirts and subjected to talk of a sexual nature
by Mr Moss. They alleged that Mr Moss regularly asked them
questions about their sex lives, and they sometimes asked him
questions about his love life as they found that this made him
easier to handle.
The EAT commented that putting up with harassment does not make it
welcome. The first instance tribunal had been entitled to accept
the evidence of the Claimants that this was a tactic used to divert
attention away from their own sex lives. It was relevant that the
Claimants were migrant workers, with no certainty of continued
employment, who were under financial and sometimes parental
pressure.
How can employers reduce the risk of discrimination and
harassment claims?
Employers will be conscious of their workplace culture. Most
employers have policies and provide training for staff on equality
and diversity. The decision earlier this year in Allay (UK) Ltd v
Gehlen highlights the importance of ensuring that training is
effective.
In Allay, the Claimant was subjected to racist comments at work.
His former employer's defence that it had taken all reasonable
steps to prevent workplace harassment failed. The employer had an
equal opportunities policy and an anti-bullying and harassment
procedure. All the employees concerned had received equality and
diversity training and bullying and harassment training about 2
years before the time of the allegations.
The EAT agreed with the first instance tribunal that the training
was stale and no longer effective to prevent harassment, and there
were further reasonable steps that the employer should have taken,
such as refreshing the training. The EAT observed that it was
relevant to consider what happened in practice, and the fact that
employees have attended anti-harassment training but have not
understood it, or have chosen to ignore it, may be relevant. If
managers become aware that, despite the training, employees are
continuing to engage in harassment, this may "serve as
notification to the employer that they need to renew or refresh the
training".
The case is a warning to employers that equality and diversity
training should not be a tick box exercise. It needs to be
meaningful and refreshed on a regular basis. The above cases are
expensive to defend, take up serious amounts of management time,
risk high-value, unlimited awards of damages and create adverse
publicity, together with recruitment and retention issues. If your
organisation would benefit from some training in this area please
get in touch.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.