Banter v Harassment

An employment tribunal has found that office banter culture meant "fat ginger pikey" comment did not amount to harassment. Why?

In Evans v Xactly Corporation Ltd, Evans claimed racial harassment (his association with the travelling community); at work, he had been frequently referred to as a "fat ginger pikey", as well as other offensive terms.

Definition of harassment

Under the Equality Act 2010, harassment is unwanted behaviour that you find offensive, where the other person’s behaviour is because:

• you have a protected characteristic, for example race, gender, sexual orientation or faith
• there is any connection with a protected characteristic (for example, you are treated as though you have a particular characteristic, even if the other person knows this isn’t true)

Unwanted behaviour could include:

• spoken or written abuse
• offensive emails
• tweets or comments on websites and social media
• images and graffiti
• physical gestures
• facial expressions

Unwanted behavior can also include banter that is offensive to you

You don’t need to have previously objected to it.

To fall under the definition of harassment under the Equality Act 2010, the unwanted behaviour must have the purpose or effect of violating your dignity, or creating a degrading, humiliating, hostile, intimidating or offensive environment for you. Also, to be unlawful, the treatment must have happened in one of the situations that are covered by the Act, for example in the workplace, in education or when you are receiving goods or services.

Findings of the Employment Tribunal

The Employment Tribunal (ET) found that office culture at the company was one of jibing and teasing and Evans was an active participant, having called one colleague "fat paddy" and another “pudding”. The ET decided that the definition of harassment under the Equality Act 2010 had not been met.

The ET found that the comments were not unwanted as Evans was such an active participant in the banter culture and had never complained of being offended. In any event, given the context and facts, the comments were not made with the intention to offend and there was no unintentional offence, given Evans’ own banter-participating behaviour.

The Employment Appeal Tribunal agreed with the ET, pointing out that the company had been extremely fortunate. It escaped liability because Evans was the author of his own misfortune. Employers should not tolerate such banter.