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Harassment or banter?

An employer may be liable under the Equality Act 2010 if it fails to protect its workforce from harassment and discrimination at work.  This is the starting point for such behaviour committed by employees towards other employees, unless the employer can show that it has taken “all reasonable steps” to prevent it from happening in the first place.

However, in some cases, the behaviour is explained away as being “banter” and not discrimination or harassment.  Was an employee who was called an “old white man”, accused of being lazy and too old for his job subjected to harassment and discrimination or was it “just banter”?

Moore v Sean Pong Tyres Limited

Mr Moore worked as a tyre-grader for Sean Pong Tyres Limited in a small team of 4 comprising Mr Moore, Mr Owusu and two other colleagues.  Mr Moore is a white man in his fifties. The job of tyre-grader is physically demanding and tiring.  Mr Owusu is younger and is a black African man of Ghanaian origin, as is Mr Frimpong, the owner and manager of the business. Mr Moore went on furlough during the first COVID lockdown, but Mr Owusu and one or two others stayed at work during that time.

Mr Moore said that he was subjected to various comments from Mr Owusu, being called a “gay white man”, accused of being lazy and being too old to do his job.  Mr Moore said that Mr Owusu shouted abuse at him, came up into his face, taunted him and threatened to hit him.  He also referred to having been sworn at by Mr Owusu in Ghanaian which Mr Frimpong translated for him.  The company’s case was that this was just banter, that Mr Owusu used bad language towards Mr Moore from time to time but only in response to bad language from Mr Moore.

In January 2021, Mr Moore made a written complaint to Mr Frimpong within which he said that he had been singled out and subjected to abuse which had caused him a lot of stress and sleepless nights.  He described the letter as a “last resort” having raised the issue previously.  He said that he “feels intimidated at times this isn’t acceptable I am 55 years old and don’t come to work to be abused and victimised.” Mr Frimpong replied and said that he would have a meeting with Mr Moore and Mr Owusu “once and for all”, indicating that there were existing issues.  At the meeting, which was also attended by other colleagues, Mr Owusu was asked why he was doing this and he replied, “I don’t know boss”. Mr Frimpong said it had to stop or one of them would have to go.  The meeting concluded with the pair shaking hands and returning to work but the issue was not resolved.

Despite this there was no improvement and Mr Moore was stressed about coming to work.  On 1 February 2021 Mr Moore left work early without an explanation. Later that day he informed Mr Frimpong that he had to have some blood tests and an MRI scan, suggesting that he may have had a panic attack or a suspected heart attack. He did not return to work the next day and was signed off from work on 3 February with depression by his GP.

Mr Moore remained off work until 19 April 2021.  During his absence he updated Mr Frimpong about his health issues which by now included a serious pain down the right side of his neck and arm, to which Mr Frimpong responded by saying “if you are not coming [to work] again could you please be straight and tell me thanks”, showing no concern for his welfare.

As such Mr Moore resigned on 19 April 2021. He referred in his resignation letter to conversations that he’d had with Mr Frimpong about “bullying and intimidating me and discrimination”.  He said that the situation had got so bad that it had caused many days of stress, upset, sleepless nights and loss of appetite, that it had affected his mental health and for his own sanity he must move on.  He later submitted a claim for direct discrimination and harassment on the grounds of age, race, and sexual orientation.

Decision

The tribunal’s starting point was that Mr Owusu used “the worst sort of language to Mr Moore on a regular basis” but that this was mutual, and Mr Moore responded to it in kind.  The difference here was that Mr Moore found it intimidating and complained about it and tried to get Mr Frimpong to bring it to an end.  Mr Owusu did not feel intimidated.  In fact, he accepted that he enjoyed winding Mr Moore up.  It was found that abusive remarks were made on a regular basis in relation to Mr Moore being too old to do his job and being white, and accepted that the word “gay” was used from time to time as a disparaging comment as Mr Owusu knew that Mr Moore was not gay.

Whilst Mr Owusu may not have appreciated the effect his conduct was having on Mr Moore, it did create a hostile and intimidating working environment such that it amounted to bullying and harassment.  The harassment was related to race and age.  As such he was entitled to resign in response to it and the resignation was therefore a constructive dismissal and an act of discrimination on the grounds of age and race.  Even if it was not, the conduct was a breach of the term of mutual trust and confidence.  The comments about Mr Moore being gay did not reach the threshold for harassment, but the tribunal acknowledged case law on the point which highlighted that it was not essential for Mr Moore to be gay to prove harassment on that ground or even for Mr Owusu to have believed him to be gay.  The main concerns here were over age and race, the main characteristics which separated the pair.

Mr Moore was awarded £7,486 for unfair dismissal and £13,675 for injury to feelings, which was assessed as being in the middle of the Vento bands for injury to feelings.  Mr Moore had tried to resolve these issues by raising a grievance but there was no real engagement with it, no action was taken and there was no written outcome.  Even though this was a small firm with no real processes in place, the ACAS Code of Practice on Disciplinary and Grievance Procedures still applies and as such a 10% uplift on the compensation was awarded, making a total award of £22,027.21.

The company had argued that the claims were out of time however the tribunal found that the date of the resignation marked the end of the harassment on the grounds of age and race, which had extended over a period of time, so the time limit of 3 months did not start to run until that time.

Comment

This case is a further reminder that “banter” will not be a satisfactory defence to allegations of discrimination and harassment in the workplace.  Employers are advised to have in place a well-implemented Equality and Diversity policy and regular training is key.  Employees should be aware of what the relevant policies say, what is and is not acceptable, together with a reminder that employees can also be pursued personally for any acts of discrimination or harassment that they commit, as well as the employer.

Any breaches should be addressed promptly and consistently.  Once an employer is made aware of allegations of this nature, the matter should be properly investigated either under an Anti-harassment and Bullying policy or the employer’s Grievance Procedure.  If an investigation shows that such conduct has occurred, then it should be dealt with properly under the Disciplinary Procedure.  As has been highlighted again in this case, what is classed as “banter” by one person can cause an intimidating environment for someone else, which can meet the threshold for harassment.

If you have any queries regarding discrimination, harassment or wish to discuss training requirements 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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