Culture of workplace banter no defence to harassment

A single comment can be sufficient to amount to harassment under the discrimination legislation. But what if that comment is made in a workplace where there is a culture of sexist and racist banter? Is a single comment in these circumstances enough to give rise to a claim?

The Employment Appeal Tribunal (EAT) recently considered this issue in Queenscourt Ltd v Nyateka (EAT 0182/06). A claim for racial harassment was brought by a black woman of Zimbabwean origin who worked as a team leader in a fried chicken restaurant. There was a good deal of racist banter amongst members of staff and on occasion, female employees would refer to one another as “bitch” and black employees would call each other “nigger” or “paki”. However, it was not regarded as acceptable for white employees to use language of this nature and the restaurant manager, who was white, did not engage in such banter.

The employee raised a concern regarding her pay, following which she was not invited to the usual management meeting. When asking the restaurant manager the reason for being excluded from the meeting he responded, “maybe it’s because I’m being racist to a black woman”. The employee was distressed by this comment and raised a grievance. This was upheld by the company and the restaurant manager was issued with a warning.

The employee brought a claim for racial harassment. The tribunal found that although the comment was meant in jest, it was more than likely to have been delivered in a sarcastic tone and it caused the employee distress. The tribunal therefore concluded that the comment amounted to racial harassment. The company appealed, arguing that the comment could not amount to harassment in circumstances where other members of staff, including the claimant, engaged in a high level of racist and sexist banter.

The EAT upheld the tribunal’s findings. The fact that the employee had on occasion referred to white women as “white bitches” did not alter the fact that the restaurant manager’s comment had caused the employee distress and amounted to harassment.

This case serves as a reminder to employers that no discriminatory behaviour or comments should be tolerated within the workplace. If an employee is distressed by a comment that is made, this may give rise to a harassment claim even if the employee has made similar comments to colleagues in the past. Employers must ensure they have a well-drafted equal opportunities policy in place, circulate this to all employees and ideally, provide training to members of staff regarding its terms.



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