Birds (not of a feather) – when workplace banter turns sour

Yet another case about misplaced ‘workplace banter’ hit the headlines recently. 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. Where is the line drawn on workplace banter?

Facts

Ms Lacatus was referred to as ‘birds’ on a least two occasions by Mr Kinghorn. Her claims for direct sex discrimination required her to prove she had suffered less favourable treatment (a disadvantage) because of her sex. Mr Kinghorn had used the term in what the judge described as a "rather puerile attempt to be ironic". The judge said that the language used was derogatory, "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.

The Tribunal heard evidence that Ms Lacatus had objected to Mr Kinghorn's use of the word the first time he used it, although it was noted that she had not raised a grievance about the comments at the time. Did this matter? No – her failure to raise a formal grievance or complain formally at the time was not fatal to her claim on the basis that the Tribunal rightly noted Ms Lacatus was subordinate to Mr Kinghorn and found she, like many others in subordinate positions, did not want to raise the issue for fear of damage to her career prospects. 

Was this the case of another rambunctious banker just getting carried away? Sort of. Judge John Crosfill said: ‘The use of the phrase “bird” was a misplaced use of irony which inadvertently caused offence’. However the Tribunal appeared to have some sort of sympathy with Mr Kinghorn, a family man with two young children whom they described as ‘bright’ – and he stopped using the inappropriate phrase after Ms Lactus confirmed her objection, noting in the judgment: ‘we accept that when this was pointed out to [Mr Kinghorn], he ultimately got the message and stopped trying to be funny’. Although a number of Ms Lacatus’ claims failed, the direct discrimination claim succeeded. A hearing to decide compensation will take place at a later date.

Comment

Workplace banter is commonplace in and I am not sure any single Employment Tribunal judgment will stop it. Used correctly, it shouldn’t cause offence and can even help build camaraderie and work relations. However, when it goes wrong, the wheels can fall off in an all too public and damaging way, and it can result in claims of harassment and discrimination, potentially leading to uncapped compensation payments and lasting reputational damage.  Context is key. Contrast this case to a similar case about workplace banter in the 2018 harassment case of Evans v Xactly Corporation whereby the comments made to a diabetic included 'fat Yoda', 'salad dodger' and 'fat ginger pikey'. In that case, 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.

So where can employers draw the line? With a rise in the reporting of sexual and racial harassment (Yorkshire Cricket Club being one prominent example to hit the headlines), there is an increased focus on banter in the workplace. Employers need to ensure that employees are aware of the standards expected of them. Make it clear from the outset (and repeat the message regularly) that banter which is related to a protected characteristic can amount to discrimination or harassment and this will apply even to one-off incidents).

Employers 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 it. As well as the clear benefits to individual employees, making your zero-tolerance policy clear from the outset can help demonstrate a 'reasonable steps' defence for employers if allegations are made.

Make sure you: -

• Have robust policies and training (especially for managers!) on equality and diversity, anti-harassment and bullying as well as email, internet and social media;
• Make all employees aware of the policies and the potential consequences of breaching them;
• Manage grievances promptly and sensitively and in line with policies; and
• Take disciplinary action where appropriate.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.