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Employers need to act to ensure that what could have once been constituted as office banter does not overstep the mark and land them at an employment tribunal
The reason we find Ricky Gervais in The Office funny is because we have all experienced his character; the over-promoted pocket philosopher at large, the self-appointed office joker.
Of course, we don't laugh with him - we laugh at him. Yet these personalities are becoming the target of employment tribunals as more employees take offence at what was once accepted as general workplace banter.
In Thomas v Robinson, 2003, IRLR 7, the judge's view was that harassment is not harassment unless a person is specifically targeted. General remarks of a racist nature are just that.
In this dispute, the female applicant of Afro-Caribbean origin complained of racist remarks made to her by a female colleague. The complainant heard the colleague say that her dog "was frightened of black people", and that Muslim women looked like "Ninjas".
A second dimension to the tribunal's assessment was that the complainant has to actually show the distressing effects of any detrimental remarks caused to them.
If comments do not cause any upset, a tribunal should not hold up any complaint of non-politically correct behaviour on discrimination grounds, and the comment must also have been explicitly addressed to the complainant.
When the colleague found out the applicant's family had returned to the Caribbean and commented "they come over here and scrounge off the system and then go back", she had overstepped the mark by directing a personalised and offensive insult at the complainant.
The key to this is maintaining the status quo, a delicate balancing act between what can or cannot be said. Otherwise, any such claim is essentially insufficient for tribunal treatment, and without evidence of harassment or victimisation behaviour directed at the complainant, it is hard to substantiate the claim.
Tribunals have enough disputes to deal with as it is, and by being presented with claims which do not merit the full weight of their jurisdiction, they run the risk of going too far in rulings. Minor misdemeanours should be settled via mediation rather than a full-blown claim, but deciding what constitutes a major claim and what should be concluded out of court is another matter. A healthy dose of proporti
