Banter is not harassment

Not setting any new precedent, but a useful case for employers to consider in defending harassment claims on the basis that comments at work are just ‘banter’.

In Evans v Xactly an employee complained he had been called ‘fat ginger pikey’ and that this was disability discrimination (his weight being caused by type 1 diabetes) and race discrimination (by reference to association with the traveler community).  On the face of it, such remark could indeed have amounted to harassment in other contexts and circumstances.  However, the evidence in this case was that the remarks were not offensive.  The language used was often and rather more choice.   As extracts of the judgment show, harassment claims are highly fact sensitive and context specific:

The office culture was of jibing and teasing…not to be unusual for competitive sales people working under stress to achieve their targets… “banter” in that no one was seeking to offend and the receiver was not offended….  The conversation was indiscriminatingly inappropriate and that nobody was either respecting or focussing on protected characteristics  …a Senior Director at the material time, who was not part of the team but sat near it, did not personally like the style of conversation but did not perceive it as unacceptable in context and never noticed the Claimant being upset.  She referred to the behaviour as “an extension of the friendship” between colleagues which was an interesting way of putting it, meaning that this was all treated as normal friendly behaviour at work.

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