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Just a bit of banter or “Wilful blindness”?
A car dealership that dismissed racist language used against one of its employees as “banter” has lost claims for direct racial discrimination and victimisation at Birmingham employment tribunal.

Mr Bali worked for Listers in its Coventry Audi dealership for five years before a complaint had been raised against him by an important customer. This was in relation to the fact that he had brought his two young children to work when his childcare arrangements failed. Mr Bali said that this event appeared to trigger a change in the way his co-workers interacted with him and eventually led to his resignation.

In early 2017 he submitted a grievance to his employers, having been signed off sick. He alleged bullying and harassment, sex and race discrimination, breaches of health and safety, and a failure to make reasonable adjustments.

Among the allegations were claims that colleagues had made racial jokes, gestures and accents when speaking to or near him, and passed extremely offensive remarks in Urdu and Hindi. He claimed the comments had been dismissed as “banter” by his colleagues, who told him he was being annoying when he sought help.

Mr Bali’s grievance was processed by head of human resources, during which he tried to raise fresh allegations. However, during the grievance process, Mr Bali was not directly asked about the allegations of racially motivated comments. Instead, the process focused on other less severe allegations. Despite the Head of Human Resources admitting to the tribunal that some of the comments were potentially highly offensive, he had failed to investigate the issue.

The grievance outcome only partially upheld one allegation – an incident where a colleague had sworn at Bali in English. During later investigations by the organisation’s operations director, the allegations about he offensive comments were again rejected, despite evidence from another colleague who said she had heard the phrases being directed towards Mr Bali. The outcome of the grievance appeal dismissed the remarks as “banter.”

At tribunal, Bali made 13 allegations of less favourable treatment, including that he had been denied opportunities because of his race, a claim of harassment related to race, victimisation and a constructive unfair dismissal claim.

The tribunal decided Bali had suffered victimisation because of failings in the grievance process, while Listers Group had breached the implied term of trust and confidence in employment with several inappropriate actions.

Listers Group maintained at tribunal the offensive comments were not racially motivated and effectively no different from other forms of banter in the workplace. The Judge described this stance as “almost wilful blindness”.

The judgment read: “It seems to us that if individuals swear in a particular language that can only be understood by those of a particular race and those individuals take offence, then that must be less favourable treatment because of race. It is targeted in terms of the audience, whether consciously or not.”

However, the judge decided that Mr Bali was a highly unreliable witness, considering many of the allegations, to have been exaggerated and embellished over time as was the alleged effect that they had on him.” He rejected Bali’s claims for constructive unfair dismissal and notice pay but upheld the direct racial discrimination and victimisation claims.

The tribunal concluded the only possible award could be for injury to feelings, and that any successful claims should be considered in the context of Mr Bali’s exaggerations.

Although this is only a tribunal case, the signal it sends about using “banter” as a defence is quite strong. Judges tend to see it as an excuse by employers who condone bullying and harassment in the workplace. So, if you have a similar working environment, it is important to make it clear to your employees that such behaviour is not acceptable. “Banter” is no excuse!
Posted on 25 Jun 2018

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