Is there such a thing as a banter defence?

11th November 2018

In the case of Evans v Xactly Corporation Limited, the Employment Appeal Tribunal (EAT) considered whether a culture of banter in the workplace can act as a defence against claims of discrimination and harassment from an employee.

Mr Evans worked at Xactly Corporation Limited (Xactly) as a sales representative before being dismissed for poor performance. Mr Evans did not have two years’ continuous service so would ordinarily be unable to bring a claim for unfair dismissal. However, as Mr Evans’ alleged that he was dismissed because of discrimination due to his disability and race, he did not need to satisfy the continuous service requirement because certain claims for unfair dismissal, such as those arising from discrimination, do not require an employee to have completed two years’ service.

This enabled Mr Evans to bring a claim arguing that he was dismissed due to his complaints about discrimination and harassment he had received in the office. The discrimination and harassment came as a result of comments from his colleagues where he had been called names such as “fat yoda” and “fat ginger pikey”. Mr Evans claimed these comments were on the basis of his disability (he had type 1 diabetes) and race as Mr Evans had connections with the travelling community.

The Employment Tribunal had made findings on the facts of the case which the EAT relied upon. These included the fact that office banter was common in Mr Evans’ team. It was found that Mr Evans was an active participant in the banter and often had nicknames for other members of the team. Mr Evans had never complained about the jokes made towards him previously.

When considering their judgment, the EAT referred to the judgment in Richmond Pharmacology v Dhaliwal which stated the test for harassment requires the violation of dignity which is not always satisfied, “particularly if it should have been clear that any offence was unintended.” This highlights the fact that the tribunal will consider whether there was any intention to harm the complainant when considering harassment claims. A key consideration when looking at the intention to cause harm in a harassment claim is whether the comments were made in jest and whether the comments were reciprocated.

The EAT held that the comments Mr Evans complained of did not satisfy the definition of harassment, even though they agreed the comments were “derogatory” and “potentially discriminatory”. The reason for this is that Mr Evans was actively participating in the office banter and therefore could not say that the comments he received were unwanted. It was also held that the comments did not violate Mr Evans’ dignity nor create a hostile environment for him. His claim for unfair dismissal was therefore rejected.

Employer considerations

This decision was based heavily on the facts of the case and it is not intended that the “banter defence” will apply in every workplace harassment claim. However it does show that, in certain circumstances, a culture of office banter, where the complainant is an active participant, may defeat any claim for harassment or discrimination.

The case should serve as a reminder to employers to encourage a professional and respectful workplace for all employees to prevent employers having to rely on the “banter defence” in tribunal since it is probable that a different set of facts would lead to a very different outcome.


Other news

Contact us

3 Waterfront Business Park
Brierley Hill
West Midlands, DY5 1LX

Email: law@higgsandsons.co.uk
Call Us: 0345 111 5050

Follow @HiggsandSons on Twitter  Join Higgs & Sons on Facebook  Join Higgs & Sons on LinkedIn


Keep up to date with all the latest here.