Sticks and stones may break my bones...

Tollers

1st July 2019

Legal Briefing

Tollers

...and workplace banter could also land you in hot water.

Rebecca List, Partner and Head of Employment law at leading regional law Firm Tollers Solicitors remarks on a case regarding harassment in the workplace.

 

IT'S hard to imagine a situation whereby being called a 'fat ginger pikey' in the workplace would not be considered to be harassment, but this was the surprising decision of the employment tribunal in the case of Evans v Xactly Corporation Limited. This case makes for interesting reading for any employer who has ever had to deal with the fallout from workplace banter.

Whilst the employment tribunal accepted that 'on the face of it' the comments were certainly demeaning and derogatory and could 'potentially' be discriminatory, they were not held to be so in the claimant's case. They also found the claimant to be an active participant in a culture of 'jibing and teasing' where such banter was considered normal and widely accepted. There was no 'unwanted conduct' and in any event, the claimant was not offended by it.

However, employers should not see this outcome as carte blanche to ignore office banter, especially where targeted at personal traits or 'protected characteristics' such as gender, age, race or disability, however innocuous it may seem. This particular claimant was unsuccessful because he was a willing participant and not genuinely offended, but the outcome for the employer could well have been very different, and here lies the warning: be wary of accepting workplace culture as justification for offensive or discriminatory conduct. One man's banter could be another man's offence.

Communicate your workplace polices to your staff to remind them of the expected standards of behaviour and be seen to be actively managing staff employees whose behaviour falls below this standard.

Investigate any complaints of harassment or bullying promptly and keep a detailed record of your investigation. Harassment is a subjective measure and intention is largely irrelevant, whereas context is everything.

Tollers employment team are here for you and are happy to carry out a full review of your employment contracts, your terms and conditions of employment, your equality and diversity policies and your disciplinary procedures to ensure you don't fall foul of office banter. Contact Tollers on 01604 258558.

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