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 proportionality should be applied when assessing the severity of any
dispute.
The new legislation regarding discrimination on the grounds of religion,
gender and sexual orientation, which will be in place by the end of this year,
will extend the possibilities of harassment disputes as there will be more
opportunities to bring a claim. However, there will surely be a tempering of
the view taken by tribunals in looking at the very nature of such behaviour in
its immediate context, as demonstrated by Thomas v Robinson.
The main rule is that when ‘banter’ (if it is regarded as such) ceases to be
welcome, it may have crossed the line.
Most employees can tolerate a certain amount of opinion of diversity. If it
becomes uncomfortable they can complain, and if it continues, they have
evidence of harassment. Even mild comments that are tolerated at first can
easily grow strong enough to become offensive.
To mitigate such circumstances, warn people of what they say and to whom
they say it. Being careful and sensitive are the watchwords; if an employee
reacts with care and consideration, no difficulties should arise.
It is sad that a case should have to come to tribunal to highlight this. A
dispute between two colleagues can be tackled head-on and dealt with
expediently, but the problem will prove to be endemic if the workplace is
indoctrinated into institutional prejudice.
By Alain Cohen, director, Ashby Cohen Solicitors
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