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Workplace 'banter' costs firm £15k in discrimination claim

A manager who was called a homophobic slur during workplace ‘banter’ has won £15,400 in a discrimination claim.

Mandy Fleming, who was manager for 25 years at refurbishment specialist McGill, was told employees should sit 'boy-girl-boy-girl' in the office, although the majority of employees, she said, were female.

When Fleming asked a male colleague if she would be sitting near a female colleague in December 2021, he laughed and said: “You dykes sit at the top,” the tribunal heard. 

Fleming was left upset and embarrassed by the comment and dreaded going to work, crying on the phone to her husband every day from the car park. 

When she complained to the company, her employer said it was workplace banter. 

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Fleming eventually resigned in February 2022 after being told that many people at the company knew of the matter. 

The tribunal ruled that she had been harassed and forced out of her job and ordered the company to pay her £15,406 in compensation, including £2,000 for injury to feelings. 

Aisling Foley, solicitor in the employment team at law firm SAS Daniels said the ‘banter’ defence is generally unlikely to be successful. 

Speaking to HR magazine, Foley said: "In cases such as these involving claims for harassment and bullying, a tribunal will look at both the intention and the effect of the comment or behaviour on the employee. 

“Even if a comment is not intended to cause offence, which can sometimes be the case in 'banter' scenarios, this is not a get out of jail free card. 

“If the employee was nonetheless offended by the comment, this could be enough for a successful claim.” 

Around a third (32%) of people in the UK have been bullied at work by comments disguised as banter, according to research from law firm Irwin Mitchell in February 2023. 

Foley said it is essential that it is important all complaints are investigated and behavioural expectations are clearly set. 

She added: "It is important for employers to ensure everyone is clear on where the line is and each employer should set down their own rules and limits on what constitutes friendly discussion and when you’re straying into the territory of bullying behaviour.  

“This may be different depending on the kind of workplace environment and makeup of employees, so there is no strict one size fits all rule.”  

Matt Jenkin, head of employment law at Moorcrofts, told HR magazine: “Employers can limit the risks of such comments being made by having a detailed anti-harassment and bullying policy which is reviewed on a regular basis.   

“Regular training should also be held to reinforce the policy.  If not, and like the employer in this case, an organisation is likely to find itself on the wrong end of a claim with the risk of significant compensation awards.”