The case of Hoch v Thor Atkinson Steel Fabrications, although not “ground breaking”, is a perfect demonstration of the issues that employers can face where they try to hide behind the defence of “workplace banter”. It also provides numerous examples of race discrimination (although the claimant was a white South African), and sexual orientation discrimination (although the Claimant himself was straight).
Background
The Claimant was hired by the Respondent, which is a company ran by Mr and Mrs Atkinson as co-directors. Whilst employed, the Claimant endured harassment related to race and related to sexual orientation. This included calling him a “foreign c***” and “immigrant”, rather than addressing him by his name, and using particularly offensive racist language which we shall not repeat here. In the early part of his employment, he was also called a “pretty boy” and “gay boy” by the director, and when challenged on this language Mr Atkinson replied that the Claimant “needed to get a f***** grip and man up.”
The Claimant repeatedly stated that he didn’t appreciate being referred to with that language, and the evidence showed that he was belittled to such an extent that he eventually went to his GP for support. He resigned on return from his holiday, stating that “I frequently receive unwanted conduct directly from yourself, which I find threatening, abusive, degrading, racist, and a violation of my personal self. The way in which you constantly address me and have done so over a prolonged period of time, had made me ill to the point I have had to seek medical attention”. The Respondent replied offering that Mrs Atkinson (who was obviously conflicted) could undertake a grievance investigation, and when this was rejected, they instead offered that a cleaner could undertake the investigation.
Response
The defence by the Respondent, alongside a blanket denial that the phrases were used (despite there being evidence by way of text messages and recordings), was that:
- All comments were part of office banter and therefore not uninvited or unwanted;
- They were not intended to create and cannot reasonably be said to have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.
In support of this defence, the Respondent searched historically through the Claimant’s Facebook page, and found one post from 2012 as evidence that he also referred to the English as “English pricks”. They also found three texts to indicate a “friendly relationship” and found that the Claimant often used the South African flag in emoji form in his text messages.
Judgement
The judge found that the comments made amounted in principle to harassment related to race and sexual orientation. The sexual orientation allegation was upheld as it was more probable than not that the comments had been made with the (incorrect) perception that the Claimant was gay.
“No evidence has in fact been produced, despite the apparent exhaustive searches on the part of the respondent, to suggest any support for the contention that the claimant encouraged or instigated matters in any direct way.” (para 70).
The argument that any exchange could amount to nothing more than “office banter” was rejected, and the judgment was also particularly damning of the Respondent’s (in particular the directors’) credibility and honesty in persisting with this argument to trial.
It was thereafter found that the Claimant had resigned in response to the breach of the implied term of good faith, this breach being the harassment and the general approach to him personally, because of this protected characteristics (https://www.thrivelaw.co.uk/employment_law/discrimination/)
The remedy hearing has not yet been published, but it is understood that the Claimant was awarded £54,000. Given that it is understood he obtained alternative employment, quite a substantial amount of this would have been an award for injury to feelings (which is awarded because of the successful claims for discrimination)
What can you learn?
This case is a particularly good lesson in the limits of “banter” and when harassment becomes unwanted conduct. It goes without saying that, generally, you should avoid creating a workplace culture where such language and treatment is an accepted part of office culture. Anti-discrimination should feature in your indication and be followed up with regular training and coupled with clear policies on what is and is not acceptable, making it clear to employees that this conduct will not be tolerated in the workplace.
This case also serves as a reminder of the importance of engaging employment law and HR advice from the outset, as no doubt this could have been dealt with in a much more cost-effective manner
If you want support with integrating anti-harassment policies and training into your workplace or you need support and guidance with a live issue then please contact Jodie.hill@thrivelaw.co.uk or click here and fill out the form to arrange a call https://www.thrivelaw.co.uk/contact-us/ with one of our experienced team.
Written by Jodie Hill and Alicia Collinson.
