When banter becomes discrimination

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When banter becomes discrimination – A recent survey showed that over 70% of employees hear discriminatory remarks at work on a monthly basis. Employers would be ill advised to write this off as merely ‘banter’. Show your employees that you take it seriously, and they will follow suit.

Is it really ‘banter’?

The survey, carried out by Turbervilles Solicitors, also showed that more than a third of 1000 respondents had witnessed discriminatory remarks made directly to employees regarding their age, sex or sexual orientation.

Here lies the risk: anti-discrimination legislation outlaws employees from being harassed because of any of the ‘protected characteristics’. Harassment is unwanted conduct which has the effect of creating an intimidating, hostile, offensive or degrading environment. What’s more, harassment is seen through the eyes of the ‘victim’, not the ‘perpetrator’ who may claim they had no intention to offend. One person’s banter, then, is another person’s harassment.

The law also protects employees from comments that create an offensive atmosphere for someone who does not possess the protected characteristic themselves, but associates with someone who does. An employee with a gay brother may claim at tribunal regarding homophobic comments made by their colleagues.

Tried and Tested

There have been several examples of banter going wrong and ending up with the employer not being able to defend a claim of discrimination. Here are a few real life examples:

  • An Irish female employee continually being likened to women from the TV programme ‘My Big Fat Gypsy Wedding’;
  • A male employee being called “gay” after telling a colleague he didn’t like football;
  • An employee in his 50s was told “you’re not 25 anymore” during a discussion about his work performance.

From a slightly different perspective, a female employee who had attended an interview for a job discovered that the manager who had interviewed her had made the following notes “Red lipstick, heels – good; tattoos, do not approve; wearing a dress – excellent”. This is another example of an individual using language connected to a protected characteristic that can create an offensive environment. This case was heard in Guernsey but it is likely that a British court would find as the Guernsey tribunal did – that the employee had suffered discrimination – because discrimination laws are similar in Guernsey.

Top tips for dealing with ‘banter’

  • Have a robust unequivocal equal opportunities policy which prohibits all discriminatory behaviour, including verbal comments and those using social media;
  • Train your managers to recognise harassment; both examples of it and the signs that employees are being harassed. Train all of your staff, ideally at induction, on what is or is not acceptable conduct;
  • Take complaints seriously and use your grievance procedure when an employee raises a complaint. Investigate the complaint properly;
  • Don’t impose your standards onto others. What you personally find acceptable is not where you should set the bar when dealing with a complaint. Casual discriminatory language shouldn’t be seen as a fact of life;
  • Apply appropriate disciplinary sanctions to those who are found to be acting inappropriately. Don’t accept an explanation that ‘it was only banter’.