Anca Lacatus v Barclays is the latest case where workplace banter has proved costly. But where is the line between acceptable banter and discrimination?
The dangers of banter
Banter is commonplace in work environments and can be a great way to build camaraderie and work relations. When it goes wrong, however, it can result in claims of harassment and discrimination, and potentially lead to uncapped compensation payments and lasting reputational damage.
An intended joke can very easily become an act of discrimination, as was the case in Anca Lacatus v Barclays.
Anca Lacatus, a junior banker at Barclays bank, claimed direct sex discrimination against her boss, James Kinghorn, for repeatedly using the expression 'birds' in the workplace.
In order to establish whether or not Ms Lacatus had been directly discriminated against, the tribunal firstly had to determine (1) whether Ms Lacatus had been treated less favourably (had she been offended by Mr Kinghorn's use of the word 'birds', and did its use accordingly put her at a disadvantage?); and (2) whether that was because of her sex.
The tribunal heard evidence that Ms Lacatus had objected to Mr Kinghorn's use of the word the first time he used it. Mr Kinghorn had continued to use it in what the judge described as a "rather puerile attempt to be ironic". The judge said that the language used was derogatory and "plainly sexist"; and amounted to something that a reasonable employee could consider to be a disadvantage.
The fact that the term was used to refer to women meant there was no doubt that the comments were made because of Ms Lacatus' sex . Therefore the direct discrimination claim succeeded. Although Ms Lacatus had not immediately raised the issue as a grievance and in that sense let it continue, this was found to be because Ms Lacatus was junior and did not want to raise the issue for fear of damage to her career.
The case reiterates that jokes with no malicious intent can constitute discrimination even if no strong objection is made. This covers situations where employees, given their position, are too afraid to call out the behaviour. But what if the employee actively participates in the joke?
In the 2018 harassment case of Evans v Xactly Corporation comments made to a diabetic employee included 'fat Yoda', 'salad dodger' and 'fat ginger pikey'. The latter of these insults was particularly striking as Mr Evans had ties to the traveller community and his colleagues were aware of this. However, the judge ruled that, because Mr Evans had himself participated in the culture of exchanging "indiscriminately inappropriate" insults, the comments did not amount to discriminatory harassment.
Discriminatory harassment can occur if an individual is subjected to unwanted conduct related to one of the protected characteristics (e.g. sex, age, race, disability, sexual orientation); and the conduct has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
There is room for banter but where is the line?
The Evans case should be treated with caution. Some of the key considerations were very specific to the case including the fact that the traveller insult had been directed at Mr Evans by one of his closest friends at the firm (with whom he spent time outside of work); that friend was the same level as Mr Evans (i.e. not his boss); Mr Evans had only raised the issues when he was facing disciplinary proceedings; and there was strong evidence of Mr Evans having used similarly offensive language.
Where the line is will always depend on the circumstances.
What can employers do?
Particularly with a rise in the reporting of sexual harassment, there is an increased focus on banter in the workplace. Employers, therefore, need to ensure that employees are aware of the standards expected of them. Make it clear that jokes and banter which relate to a protected characteristic can amount to discrimination or harassment (even one-off incidents); and that "I was only joking" will only be a defence in an increasingly narrow set of circumstances.
There are many reasons to promote a positive, inclusive working environment, and for taking steps to prevent discrimination and harassment by your employees. As well as the clear benefits to individual employees, it can help demonstrate a 'reasonable steps' defence if allegations are made. You will be liable for discrimination or harassment by your employees if this occurs ‘in the course of employment’, even if it is done without your knowledge or approval, unless you can show that you took reasonable steps to prevent employees committing a particular discriminatory act or committing such acts in general.
It is therefore important to:
- Have robust policies on equality and diversity, anti-harassment and bullying as well as email, internet and social media;
- Keep policies up to date and review them regularly;
- Make all employees aware of policies and the potential consequences of breaching them;
- Manage grievances in line with policies, handle complaints effectively and take disciplinary action where appropriate; and
- Provide equality and diversity training for the workforce, and specific training for managers and supervisors in equal opportunities and harassment issues (including examples of what might amount to harassment or discrimination).
If you have any questions relating to the issues raised in this blog please get in touch with a member of our Employment and Immigration team.