Case study: “Banter” or discrimination?

OVERVIEW

A 55-year-old tyre firm worker Mr M – who is white – raised a case at an employment tribunal against a Black colleague, Mr O. Mr M accused Mr O of regularly taunting him about his age and race, referring to him using terms such as “old white guy”, eventually forcing Mr M to resign. The men’s employer had defended the behaviour as “banter”, but the tribunal found that the language used by Mr O amounted to harassment. They awarded Mr M £20,000 in compensation.

BACKGROUND

Mr M, 55, worked as a tyre grader at a small firm in South Yorkshire. He worked alongside a younger colleague, Mr O, who was Black. Mr O repeatedly taunted Mr M about his age, telling him he was too old to do his job. He would also refer to Mr M as “gay”, despite knowing this was untrue.

The men had been on good terms with each other for a number of years, however their relationship deteriorated after Mr M made a complaint about Mr O.

Mr M complained to his employer about the behaviour and the situation improved briefly before the abuse re-started.

Mr M eventually resigned and took his case to an employment tribunal.

OUTCOME

The men’s employer defended the case on the basis that the behaviour amounted to “banter” and that both men had taken part. Mr O said they often swore at each other but he never used racist language.

However, the tribunal judge disagreed, saying: “This sort of thing is not banter. There is no element of humour in it.” He ruled that the language used had “tipped over into aggression” and created a “hostile and intimidating working environment and amounted to bullying and harassment.”

The tribunal found that Mr M’s resignation amounted to constructive dismissal and an act of direct discrimination on grounds of age and race.

Mr M was awarded £22,000 compensation.

KEY POINTS

Race discrimination and harassment are unacceptable in any workplace. The Equality and Human Rights Commission states that: “The treatment could be a one-off action or as a result of a rule or policy based on race. It doesn’t have to be intentional to be unlawful.”

This case is a careful reminder of the importance of being alert to the nature of workplace ‘banter’. What may be acceptable to one employee may not be acceptable to another. What matters is how the behaviour is perceived by the person it is aimed at.

Employees should also be aware that anyone who overhears the ‘banter’ can also have grounds for a complaint or claim.

Remember that practices can also be held liable for the actions of their employees.

Practices should make sure that they have up-to-date policies on bullying and harassment, and equal opportunities, and that these are widely understood by the whole team. This means including them in any employee induction programme and giving regular refresher training.

FURTHER INFORMATION

• Contact the employment law team for more specific advice, or to request a copy of our policy templates, on advice@mddus.com