As a society, discrimination is no longer acceptable whether in the workplace or not. Gone are the days when mere “banter” was acceptable and for the majority of us, we took this in our stride, trying to fit in and be part of a group in a workplace.
A person should not have to endure discriminatory or racist comments or even take part in office banter merely to fit in and be accepted, or to fear losing their job if they do not take part, in what many people will describe as harmless fun and banter between colleagues. Where do you draw the line? A person’s mental wellbeing can be affected by crude and humiliating comments regardless of whether they appear to be accepting of it or not.
This was the case for a car salesman, who recently won an unfair dismissal claim.
A British Asian man joined a dealership, which was male dominated. From the commencement of his employment he was subjected to racist nicknames and practical jokes, such as being known as “poppadom”. In an effort to fit in with his work colleagues he went along with the jokes. A works WhatsApp group was even set up when sales staff were put on furlough, where the crude and offensive jokes continued.
He felt that he had no choice but to go along with this behaviour as he did not want to be an “outsider”, he was trying to integrate and to not lose his job. However, this changed when on a visit to the showroom with his son on a day off, a male colleague threw a banana on the floor as he wanted to see how he reacted.
Being unable to endure the comments any longer, he complained but his complaints were not taken seriously and as a result went on sick leave. He later raised a grievance to his bosses about the treatment he was receiving, particularly in relation to one colleague. However, to his surprise he was later sacked on charges of race and sex harassment towards his white colleague, on the basis of racially offensive memes and jokes shared in a WhatsApp group. His colleague had however resigned before facing any disciplinary action, but he did send to bosses screenshots of the WhatsApp chat in which they shared memes.
An Employment Judge ruled there was no evidence that his work colleague was offended by his messages and the wider office culture was not investigated or considered. The Judge criticised the working environment at the dealership, explaining that the culture was “laddish”, crude and immature and this manifested in the day-to-day interactions in the workplace on the sales floor. The Employment Judge found that the comments amounted to deliberate and aggressive expressions of misogyny, hostility towards homosexuality and racism. In continuing, the Judge stated, “that sort of culture allows other forms of offensive language and behaviour to be excused under the misnomer of “banter”. The Judge further stating, “the messages are a product of the culture he came into and which has been allowed to normalise without censure by the employer’s lower management.” The Tribunal resolved the case in favour of the Claimant, with compensation to be assessed.
We should never feel under pressure to fit in and be part of a working environment by subjecting people to or joining in with office banter which demeans, humiliates, or embarrasses a fellow work colleague. We should not feel pressured to take part and conform to this type of behaviour. An employer has a duty to protect their employees and they have a duty to investigate when an employee raises an issue with any form of discrimination.
By discriminating against someone, this means that you are treating them less favourably because of something which is unlawful e.g. a person’s gender, race, or disability. The Equality Act protects a person from discrimination and race is one of the nine protected characteristics in the Act and the legislation is there to protect people against discrimination.
If you believe that you are the victim of discrimination contact us for further advice, remembering that there are strict time limits which apply.
Written by Karen Ogden