When banter goes bad

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When banter goes bad

The perils of banter in the workplace are well-known. What may seem harmless joshing to one person might prove deeply hurtful and offensive to another. Even in environments where everything appears to be good-natured, nobody can truly understand how the recipient feels about it unless they speak up, and there’s always the risk that they don’t feel comfortable doing so.

The case of Ruda v. Tei Ltd back in 2011 became an oft-quoted example of the need for awareness of the effect of banter at work. Mr Ruda was Polish and had acquired the nickname of “Borat” due to his accent. The environment he worked in was prone to banter and, by all accounts, nicknames were prevalent. He was also subject to a number of other comments which he found offensive such as being called “gay” and a “pig”. He claimed these comments were made to him every day, but the Tribunal found that they weren’t quite as frequent as Mr Ruda had claimed.

However, despite this, and the fact that Mr Ruda played up to his “Borat” nickname by using the fictional character’s catchphrases to diffuse tense situations, the Employment Tribunal found that this nickname, which a manager of the firm admitted that he’d used, amounted to discrimination on the basis of race as Mr Ruda claimed he’d been afraid to speak up and challenge this name-calling for fear of being excluded or the situation getting worse.

With that in mind, the recent Employment Appeal Tribunal case of Evans v. Xactly Corporation Ltd throws a slightly different perspective on this. Mr Evans had worked for the IT company in a sales role but was dismissed due to poor performance, as he’d reportedly made no sales for the company during his employment.

However, he raised a claim that during his employment he’d been subject to race and disability discrimination when he was called “a fat ginger pikey” by another colleague. Mr Evans, who has type-1 diabetes and is a member of the Travelling community, had not complained about the comments at the time, just like Mr Ruda, and had joined in with the culture of banter which existed within the team that he worked.

Unlike Mr Ruda though, Mr Evans was not averse to using a few choice words himself towards other colleagues, including regular use of the c-word, and since his complaints appeared to be more of a reaction to his dismissal for poor performance rather than a genuine case of discrimination, both the Employment Tribunal and the Employment Appeal Tribunal have dismissed his case.

It’s an interesting result and could lead some people to think that if someone ‘gives as good as they get’ then you can say what you like. It’s not that simple of course; in another scenario with different circumstances that same language would be a clear case of discrimination. This banter would have occurred even if Mr Evans had been the company’s best salesman, in which case the EAT has made the reasonable assumption based upon the evidence presented that he would never have made a claim as he wasn’t truly offended by the remarks. It’s a fine line though and doesn’t open the floodgates for offensive banter to be the norm.

It’s crucially important that companies not only have policies and procedures for equality and inclusion but that they’re not just paying lip service to them. In a diverse society it’s important that these policies are embedded within the fabric and culture of an organisation. This can be achieved through induction and regular training of staff.

As part of my role at Workplace Law, I deliver equality training to a number of companies in different industries, and it’s a wonderful opportunity to recognise and understand diversity, rather than it coming across as a finger wagging exercise.

Banter isn’t always a dirty word, we all need good humour in the workplace, it helps us to enjoy our job and the people we work with… but a bit of empathy and awareness goes a long way.