Banter – Just jokes or discrimination?

24 / 11 / 2021

Yorkshire County Cricket Club (YCC) has recently been in the press after it passed off racial slurs made against one of its players as “in the spirit of friendly banter”. Azeem Rafiq complained that he had been subjected to racial harassment and racial slurs (referring to his Pakistani heritage) by other players and senior members of staff throughout his tenure with the club. YCC settled the employment tribunal claim, however the allegations of institutional racism and issues surrounding the club’s unacceptable use of banter as an excuse for racism remain.

This is not the first case where banter has been used as a defence against claims of bullying, harassment and discrimination, and it won’t be the last. Whilst “friendly jokes” and “banter” can build rapport amongst co-workers, it can easily be taken too far. In a claim for harassment, the intention of the perpetrator is not a valid defence.

The Equality Act 2010 defines harassment as unwanted conduct related to a relevant protected characteristic that has the purpose or effect of violating the complainant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant. The tribunalwill take into account how the complainant perceived the unwanted conduct when assessing the effect of the conduct: how the complainant felt on the receiving end trumps the intentions of the perpetrator. A joke can amount to harassment even though the person making it did not mean to be offensive or believe that what they were saying would offend anyone.

Often the “banter defence” is used by employers in harassment claims as a means of alleging that the legal definition of harassment is not met i.e. by showing that the conduct was not “unwanted” or did not create a “intimidating, hostile, degrading, humiliating or offensive environment” because the employee willingly participated in workplace banter and therefore was not offended. Tribunals will look at the wider circumstances of the conduct in question and mere participation in banter will not necessarily mean that the conduct is not “unwanted”. Where, for example, a junior female employee participates in banter because she feels pressured into it by the male owner of the business, the imbalance of power could be sufficient to show that the conduct was unwanted (Munchkins Restaurant Ltd v Karmazyn 2009).

By way of contrast, in the case of Evans v Xactly Corporation Ltd 2018, it was held that there was no race or disability discrimination where the employee was called a “fat ginger pikey” because, despite his links to the traveller community and having type 1 diabetes, he was an active participant in the banter culture at work. In evidence, the tribunal heard that the claimant often called another colleague a “fat paddy” and the conversations were “indiscriminately inappropriate and that nobody was either respecting or focussing on protected characteristics*. The evidence also showed that the individual who had called the claimant a “fat ginger pikey” was a friend of the claimant’s and that they socialised both in and outside of work and continued to do so even after the comment had been made. Furthermore, the claimant did not raise the issue until after he was placed on a performance improvement plan.

So, the “banter defence” may succeed in certain circumstances, but each case will be judged on its specific facts. Employers should be mindful of banter at work and be aware that when the words used are inherently racist or sexist, they are not acceptable. The use of such words is likely to amount to direct discrimination in addition to harassment.

In the recent case of Anca Lacatus v Barclays Execution Services Limited and others 2020 the Employment Tribunal found that the claimant’s manager repeatedly used the expression “birds” to refer to women in the workplace and that this amounted to direct sex discrimination. The tribunal accepted that the manager did not set out to deliberately offend the claimant and that after he realised that the expression offended her, he stopped using it. Nevertheless, the tribunal recognised that the grounds for action can be inherent in the action itself (Amnesty International v Ahmed 2009). It held that the use of a derogatory term about women is inherently because of sex and therefore the use of the expression “birds” in front of the claimant was an act of discrimination because of her sex (after all, the term would not have been used to describe a man). Had YCC not settled the claim, it seems likely that Mr Rafiq would have succeeded in a claim of direct discrimination in relation to the use of the racial slur which was inherently racist in nature.

Employers should take steps to ensure that employees are aware of the negative effects that banter can have and take a zero tolerance approach to inherently sexist or racist remarks, even if they are said in jest and without malice.

Employers can be vicariously liable for discriminatory acts committed by their employees, but may be able to defend such claims using the “reasonable steps” defence. To do so, the employer will need to ensure that they had robust policies dealing with equality and diversity in the workplace, anti-harassment and bullying, (including sexual harassment). These policies must be made known to all employees and employees must receive regular training. In addition, complaints should be taken seriously, investigated, and appropriate action should be taken. For more information on the benefits of training and robust policies, please read our previous article A Failure To Train And Retrain Can Lead To Vicarious Liability In Discrimination Claims – Wedlake Bell

The employment team at Wedlake Bell have expertise in dealing with discrimination claims. We can also draft relevant policies and provide training, as requested. For more information, please do not hesitate to contact us.

*In the case of harassment, these are limited to age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.