Is calling someone a profanity at work harassment or office banter?

What is harassment?

Harassment is defined in the Equality Act 2010 to be “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.”

The relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation.

Harassment is a form of unlawful discrimination and can include behaviour that individuals find offensive even if it's not directed at them, and even if they do not have the relevant protected characteristics themselves. It is important for an employer to be able to recognise harassment in the workplace to reduce the risk of an employee lodging an employment tribunal claim against them. Therefore it is in every employer’s interest to promote a safe, healthy and fair environment in which people can work in.

Unwanted behaviour can include spoken or written words, threats or abuse, offensive emails, tweets or comments on social networking sites, physical behaviour such as facial expressions or gestures, jokes, teasing and pranks.

However, following the EAT case of Evans and Xactly Corporation Limited 2018 it was held that calling a colleague a “fat ginger pikey” failed the test for it to constitute harassment. During Mr Evans employment he was referred to as a “fat ginger pikey,” a “salad dodger”, a “fat yoda” and a “gimli.”

Can it be 'just banter'?

The Tribunal found that Mr Evans was an active participant in inappropriate comments and behaviour in the workplace, and seemed to be comfortable with the office environment. He apparently often said the word “c***”, mocked a female member of staff’s weight by calling her “the pudding”, and called one of his friends a “fat paddy” on a regular basis. As a result, the tribunal found the office culture to be one of jibing and teasing.

Although, on the face of it, the 'fat ginger pikey' comment is derogatory and potentially a harassing comment to make, the tribunal found that it failed the tests for harassment as the comments were not unwanted as he had been an active participant in the culture of 'office banter' and the comments did not have the purpose of violating his dignity or creating an intimidating environment for him as he was not offended.

It is important to note that had the circumstances been different, the outcome of this case could have been very different. For example, if the comments were overheard by someone else and they were offended, they could lodge a claim for harassment against their employer. Therefore, employers should not rely heavily on this case and ensure that discriminatory office banter is not ignored in the workplace.

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