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Perception is key when it comes to ‘banter’ at work

A carer, who was also a model, accepted a Facebook friend request from her manager and then found her sharing her modelling photos at work with colleagues who branded her a ‘slut’, ‘porn star’ and ‘go-go dancer’. Was she the victim of harassment?

Wallace v HC-One Limited

Ms Wallace worked as a care assistant for HC One at Acomb Court Care Home in Hexham in October 2019 until her dismissal in January 2020.

In December 2020, a senior manager and Ms Wallace became friends on Facebook. Ms Wallace was a model and had uploaded some photos that had been taken of her for a rock and roll magazine. In the photos, Ms Wallace was wearing a black leather basque and fishnet stockings. A few days after the Facebook connection, Ms Wallace’s manager was found showing other colleagues the photos.

The manager commented that Ms Wallace looked like a ‘slut’ and asked a fellow colleague ‘doesn’t she look like a slut?’. Another colleague said that Ms Wallace ‘looked like she belonged on a porn site’ and another that she ‘looked like a go-go dancer’. The manager continued to discuss the photos asking Ms Wallace if she was married. When Ms Wallace said no but she had had two long term relationships where she lived with the men, the manager said ‘one in the front, one in the back’. Later the same day, as Ms Wallace was leaving after her shift, the manager shouted after her, ‘where are you going? Pink Lane’, which is a road in Newcastle ‘notorious for prostitutes’. Ms Wallace left work very upset.

Ms Wallace confronted her manager about the comments that she had made. Her manager said she was ‘only joking’ and that she had ‘stuck up’ for Ms Wallace when other members of staff were discussing the photos, but she was not going to do so again. The manager relayed this conversation to colleagues adding ‘if she’s not off my floor I am going to have her’, which Ms Wallace overheard. Later the same day, the manager asked Ms Wallace to change floors as a resident’s relative had made a complaint about her.

HC-One’s hotline then received an anonymous complaint about the incident in which colleagues were discussing Ms Wallace’s photos and passing comment. The home manager investigated the complaint the day after receiving it and took statements from all staff involved. She concluded that the complaint did not ‘tally up’ with the statements she had taken from staff and decided the incident was just ‘banter’.

HC- One had issues with Ms Wallace’s performance, for example, she was having difficulty performing tasks, had failed to complete online training and was at risk of injuring patients. Ms Wallace was still in her probationary period was dismissed for lack of competence and unwillingness or inability to learn.

Ms Wallace brought claims for harassment, direct sex discrimination, victimisation and unlawful deduction of wages.

Decision

The claims for direct sex discrimination, victimisation and unlawful deduction of wages were dismissed. The tribunal upheld the claim for harassment saying that even if Ms Wallace had shown photographs of her modelling to others, “that is not licence to say to her things implying she was a promiscuous ‘slut’ or a prostitute”. It also found that the investigating manager had made up her mind the complaint was untrue “without even speaking to the claimant”. The judge made a distinction between the terms used by Ms Wallace’s colleagues and said that the comments about her looking like a “go-go dancer”, and maybe even a “porn star”, could be described as “banter” but those about being a slut and going to Pink Lane could not.”

The Claimant’s other claims failed, and it was found she had been dismissed for a wholly non-discriminatory reason, namely her poor performance.

Comment

Where is the line between banter on the one hand and bullying, harassment and discrimination on the other?

Harassment under the Equality Act 2010 is defined as “unwanted conduct related to a relevant protect characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.”

In determining whether something is bullying/harassment or “banter”, the recipient’s perception is one of the factors an Employment Tribunal must take into account. As far as the Equality Act 2010 is concerned, a tribunal will look at whether a person has been offended by any unwanted conduct related to a protected characteristic. If so, depending upon the nature of what was said, a finding of harassment will ensue unless an employer can show that it was unreasonable for a claimant to have reacted in that way. As a consequence, once ‘banter’ related to a protected characteristic is out there, the risk of a harassment claims arises and cannot be cured by any action taken by the employer to try and rectify the situation. Employers must therefore ensure that employees are properly trained, so they know how they should conduct themselves whilst at work, to avoid claims arising.

We can assist with ensuring that your staff handbook is up to date and includes policies on equal opportunities and harassment and that all employees are made aware of the behaviour expected of them in the workplace. We can also provide training for staff, which must be refreshed regularly, if employers want to avoid being vicariously liable for the actions of their employees. 

If you have any queries, please contact our employment team on 01228 552600 or 01524 548494.

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

 

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