“It’s Just Banter”: A New Defence to Discrimination Claims?

When dealing with complaints or disciplinary issues, many employers will have heard the phrase ‘it’s just banter!’ raised in defence of the accused. However, could this possibly be a defence in the Employment Tribunal? Well, possibly.

In the case of Evans v Xactly Co Ltd heard last year, potentially discriminatory conduct was explained by an office culture of ‘banter’. Ultimately, the Claimant’s case failed on that basis.

Case Facts

The Claimant, Mr Evans, was a sales representative working for Xactly. Mr Evans suffered from type 1 diabetes and hyperthyroidism. He also had some links to the traveller community, though only one colleague was aware of this.

Mr Evans began working for Xactly in January 2016. However, he was dismissed in December 2016 as a result of poor performance because his team failed to hit its targets.

The Claimant was unable to claim unfair dismissal because he had not been employed for two years. However, there is no such limitation on claims for discrimination. Mr Evans therefore raised claims for discrimination arising from disability, direct discrimination, harassment, and victimisation. In particular, his claims were that he was called a ‘salad dodger’, ‘Gimli’, ‘fat yoda’, and ‘fat ginger pikey’ by his colleagues. Mr. Evans claimed that he raised these issues as complaints with the management and was dismissed as a result of so doing.

The Tribunal’s Decision

The Tribunal found Mr. Evans was disabled under the Equality Act 2010 as a result of his Type 1 diabetes. However, he did not prove in court that his diabetes or hyperthyroidism had any real impact on his weight. The court therefore found that any claims which sought to rely on comments made about his weight could not be found to arise from or be connected to his disability.

The Claimant’s comments regarding race related harassment were considered next. Mr Evans, in order to succeed for his claims for race related harassment, would have to show that he had been subjected to unwanted conduct related to a protected characteristic and that that unwanted conduct had the purpose or effect of violating his dignity or creating an environment which was intimidating, hostile, degrading, humiliating or offensive to him.

The office culture of ‘banter’ was relevant to this. The Tribunal found that it was common within the Respondent’s business that colleagues would tease each other. The Claimant himself was often involved in this. Evidence was provided that Mr. Evans had referred to a colleague as a ‘fat paddy’ and to a female colleague as a ‘pudding’. The Tribunal, describing this behaviour as ‘indiscriminately inappropriate’ found that this behaviour appeared to be accepted and treated as the norm within the Respondents business.

The Tribunal at First Instance found that there was no discrimination against the Claimant.

The Appeal

The Claimant appealed the Tribunal’s decision to the Employment Appeals Tribunal (EAT). The EAT found that the Tribunal at First Instance’s comments regarding office culture were not incorrect and that the Tribunal was entitled to make those findings.

The EAT commented that the comments made to the Claimant were plainly derogatory or unpleasant, but that did not mean that the test for harassment had been satisfied.

The EAT confirmed that the comments were clearly not unwanted because the Claimant actively participated in this culture of ‘banter’. The Claimant was plainly not violated or intimidated by the comments, nor was he offended. Accordingly, the Claimant did not prove that he had been harassed within the meaning of Section 26 of the Equality Act 2010.

But what does this mean for employers?

Whilst in this case, the defence of ‘it was only banter’ worked successfully in the Respondent’s favour, we would provide a stark warning to companies seeking to rely on this.

Employers should not feel that an office culture where staff are routinely rude or degrading to each other is acceptable. Indeed, we would probably suggest that this case is unique as a result of the Claimants tenuous links with the protected characteristics he had sought to make out, meaning it was weak to begin with.

Employers should utilise their contracts and their policies regarding disciplinary procedures and grievances effectively in order to combat working environments which are unprofessional or problematic.

Should you require any assistance with statements of employment particulars, employment contracts, or anything else raised in this article, please contact Charlotte Braham on 01494 521301 for further advice.


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