How do I handle it? Banter in the workplace – only joking is only an excuse
“I am an HR Manager and recently received a written complaint from an employee who told me that his colleague was calling him a “tinker” and a “gypo”. When he challenged his colleague and asked him to stop, he was told it was just a bit of “banter”. I do not know what the legal ramifications of this could be and am unsure what to do with this complaint, how do I handle it?
You would be well advised to take this complaint very seriously, as it is possible that this employee may decide to bring a claim of harassment and/or discrimination on the grounds of race. Under the provisions of the Race Relations (Northern Ireland) Order 1997, as amended, harassment on racial grounds, is defined as unwanted conduct based on race, or ethnic or national origins, which has the purpose or effect of:
- violating someone’s dignity;
- creating an environment that is intimidating, hostile, degrading, humiliating or offensive.
The Irish traveller community is specifically protected under this legislation. Therefore, it may be that if it transpires that the employee who is complaining, is of an Irish traveller background, then they will have the protection of that legislation.
In the recent employment tribunal case in England of Edward Bell –v- Cordant People Ltd & Ors (2017), Mr Bell brought an unfair dismissal claim, based on whistleblowing allegations and also a race discrimination claim, based on his Irish traveller background. Mr Bell was subjected to various incidents of harassment by his work colleagues, including being called a “pikey”, a “paddy” and references were made to his upgrading to a new horse and cart under the company car policy and that he “looks like a tinker”. Mr Bell ultimately succeeded at Tribunal in his unfair dismissal claim and also in the racial harassment part of his claim. The overall compensation awarded, the majority of which was attributed to the whistleblowing element of his claim, was in excess of £280,000.
In this instance, I would therefore suggest that you carefully review the written complaint – on the face of it, it sounds like it is more likely to be a bullying/harassment complaint, which should be dealt with under your bullying/harassment procedure. Make sure you identify the correct procedure to apply and follow it through to its natural conclusion. If a complaint of bullying/harassment is ultimately upheld against the alleged perpetrator, then one possible outcome, is that they may be subject to disciplinary proceedings, as a consequence of a finding against them.
You should also consider reviewing your Company policies and procedures to ensure that they are fully up to date. The Equal Opportunities policy should clearly set out the company position on discrimination and harassment and also list all of the “protected” grounds. You should also consider providing refresher training to employees on equal opportunities/harassment. All too often, employees are simply unaware of the dangers of workplace “banter” and indeed, it often plays a key part in many of the leading cases on discrimination in the workplace.
As you are no doubt aware and as can be seen from the Edward Bell case, an employment tribunal can hold an employer liable for the actions of its employees. Indeed, often the employer will be joined into harassment/discrimination proceedings, as a separate Respondent, so it is extremely wise to act quickly, take steps to address the issue as soon as it arises and take legal advice.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.