Cheeky Banter

The Employment Tribunal (ET) is currently hearing a case regarding allegations that an employee was subjected to racist and homophobic remarks from colleagues which were passed off as “banter” by the employer’s HR department.

Owens v Euro Quality Coatings Ltd

Mr Owens was employed as a Warehouse Operative by Euro Quality Coatings Ltd (EQC) before being dismissed on 1 October 2014. Following the termination of his employment, Mr Owens submitted a claim for harassment against EQC on the grounds of sexual orientation and race. Owens (who is mixed race) claimed that his fellow employees subjected him to verbal abuse, dubbing him the “token black guy” as well as referring to another black co-worker as “Eddie” after the American actor Eddie Murphy. Employees of EQC were also allegedly overheard making derogatory and racist statements within Mr Owens’ earshot such as “black men and white women. It’s wrong. It’s disgusting” and using the film 12 Years a Slave as a platform to express racist views.

No Laughing Matter

Despite Mr Owens reporting the frequent incidents to management, he alleges that nothing was done about it, with the Head of HR of EQC reportedly telling the ET that “jokes go on” and that any alleged incidents were merely “harmless banter”. In a statement Mr Owens claimed that the abuse continued until just before his dismissal on around a weekly basis. He alleges that he continued to complain to managers, albeit on a less frequent basis but then gave up.

EQC staunchly refute the claims and the suggestion has been made that Mr Owens has taken the “banter”, which EQC claims was never intended to be malicious, as an opportunity to try and force EQC to take him back. They deny that there is a culture of racism within EQC. Furthermore, the legal representative for EQC highlighted inconsistencies within Mr Owens’ harassment claim, suggesting that the allegations are contradictory and do not appear in Owens’ initial claim form.

The hearing continues regarding Mr Owens and EQC and we will endeavour to keep you updated.

Harassment or Horseplay?

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.”

Bullying is characterised by ACAS as offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient. Although the two terms may be used interchangeably, unless bullying amounts to conduct that is defined as harassment under the Equality Act 2010, an employee will be unable to make a complaint to an ET about it unless they resign in response to it (or in response to an employer’s handling of any resultant grievance) and claim constructive dismissal.

In determining whether something is bullying/harassment or “banter”, the recipients view is more important than that of the person making the comments. As far as the Equality Act 2010 is concerned, a tribunal will look at whether they were 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 the claimant to have reacted in that way. As a consequence, once ‘banter’ related to a protected characteristic is out there, the risk of discrimination claims arises.

To help avoid bullying and harassment in the workplace or any potential claims arising from it, it is important to ensure that your staff handbook includes policies on equal opportunities and harassment and that all employees are made aware of the behaviour expected of them in the workplace. Whilst some things can fall into the category of banter, protected characteristics should ideally be no laughing matter….

If you have any queries relating to bullying and harassment in the workplace please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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