A fine line between banter and bullying

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by Mark Hamilton

‘It was only banter’ is an often-used excuse. Mark Hamilton, a partner at Dentons, looks at a recent employment tribunal case showing that, surprisingly, this defence can work. However, while staff may enjoy friendly jokes on shift, managers still have to know where to draw the line

Staff are happy to call each other names – should I intervene?

The recent case of Evans v Xactly Corporation Ltd shows that context really is key. It concerns David Evans, who was dismissed as a sales rep by Xactly having failed to make a single sale in almost a year. Following his dismissal, he brought claims including discrimination and victimisation on the grounds of disability and race under the Equality Act.

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Mark Hamilton is a partner in Dentons’ Employment and Labour practice. mark.hamilton@dentons.com

Mr Evans reported that he had been the victim of a sustained campaign of name-calling by his colleagues, who referred to him, among other things, as “fat Yoda”, “salad dodger” and “fat ginger pikey.” But the tribunal found against Mr Evans, ruling that he was dismissed because of poor performance and not for any discriminatory reason.

What constitutes harassment then?

To be successful in a claim of harassment, a claimant must be able to relate their treatment to a relevant protected characteristic (such as race, religion, sex, disability etc). More specifically, the Equality Act defines harassment as “unwanted conduct related to a relevant protected 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.”

Mr Evans attempted to link his claims to the fact that he suffered from type 1 diabetes and had an under-active thyroid (a disability which he blamed for his weight) and his connections to the traveller community, who are legally defined as an ethnic group and so protected against race discrimination.

Managers should be ready to intervene with staff

How does context fit in?

The employment appeal tribunal (EAT) dismissed Mr Evans’ appeal, reasoning that the name-calling took place in the context of what was termed a “culture of banter” in which Mr Evans was an active participant. Mr Evans himself repeatedly referred to an Irish colleague as a “fat paddy”, as part of a wider conversation the tribunal labelled “indiscriminatingly inappropriate.”

Important in the EAT’s decision-making process was the fact that the colleague who made the “fat ginger pikey” comment did not actually know Mr Evans had links to the traveller community. The EAT also commented that Mr Evans did not react at the time the remark was made, as would have been expected had he actually been offended.

So can staff be left to their banter?

Although in this case the EAT found in the employer’s favour, the outcome was very fact-specific and certainly does not give the green light for employers to ignore potential discriminatory comments in the workplace.

If an employer finds itself before a tribunal, it should be able to say that it took all the reasonable steps it could to prevent harassment or discrimination.

This would include putting in place a company policy prohibiting offensive name-calling, in combination with training to ensure all staff understand what is considered acceptable behaviour. Managers should also be ready to intervene, even if gently at first, if staff conversations become a concern.

Protected characteristics are of particular concern: although weight isn’t one of those, had Mr Evans succeeded in linking his weight to a disability the outcome of his case may have been different.

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