The phrase "but it was just office banter" is usually a good indication that something offensive, and possibly discriminatory, has been said within the workplace with a consequential price tag for the employer.

However, the recent case of Evans v Xactly Corporation has shown that, on occasions, a culture of banter can help to explain what, on the face of it, looks like potentially discriminatory conduct and help to defend the employer from a discrimination claim.

In the above case, Mr Evans was a sales representative who worked within an office. He suffered from Type 1 diabetes and he had some links to the travelling community. He was employed for just under a year when he was dismissed for poor performance for, notably, not having made a single sale during the course of his employment.

Mr Evans did not have the requisite two years’ service in order to bring a claim for unfair dismissal. However, having been the subject of ‘office banter’, he alleged that the real reason for his dismissal was because he had raised complaints about comments made towards him which he said amounted to discrimination because of his disability and race. These claims arose as a result of him being called various derogatory terms by his colleagues, including “salad dodger”, “fat Yoda” and “fat ginger pikey”.

Whilst the Tribunal accepted that Mr Evans was disabled as a result of his diabetes, the negative comments were made about his weight as opposed to his diabetes directly. He argued the comments were linked to his diabetes and therefore he had been discriminated against. His disability discrimination claim failed, given he had failed to adduce evidence that his diabetes had a direct impact on his weight.

Mr Evans’ racial harassment claim also failed as the Tribunal found that he was dismissed due to his poor performance and not for discriminatory reasons. The Tribunal accepted that “fat ginger pikey” was a derogatory and unpleasant comment and could potentially be discriminatory. However, they heard evidence that the office culture was one which included jibing and teasing, and Mr Evans was an active participant in the culture of “banter.” He did not complain of the behaviour at the time, and continued to be friends with the colleague who had made the remark.

Mr Evans appealed the decision, but this was not upheld. The definition of harassment under the Equality Act 2010 is unwanted conduct that has the purpose or effect of violating dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee in question. The Employment Appeal Tribunal reaffirmed the position that “dignity is not necessarily violated by things said or done which are trivial or transitory, particularly where it should have been clear that any offence was unintended“. As Mr Evans happily participated in the jokes and could not be seen to be being put under any pressure to join in, the conduct did not have the effect required to succeed in his claim.

Of course, employers should not feel that such an office culture is acceptable, or that this decision gives the green light to offensive behaviour within the workplace. In another context, the same comment could easily amount to harassment. What is clear is that Tribunals will examine the context of the remarks and the past conduct of the employee concerned when considering whether the remarks were friendly banter or harassment.

For further help or advice or to discuss the issues raised in this article, please contact Kathryn Moorhouse.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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