What is banter?

The article below appeared in People Management on 19 June 2018. It highlights the question of what is banter, when does it stop being lighthearted and becomes targeted abuse. In the case documented below by Emily Burt, Mr Bali did raise a grievance which was investigated by the HR department and the main perpetrator of the racial comments was eventually dismissed for Gross Misconduct, but the comments were still described as ‘just banter’. However, personally, I think they sound pretty offensive.  What this highlights to me is the need for credible witnesses, consistency, objectivity and a full investigation in the grievance cases. It would appear that something was lacking in this instance.

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 L Bali, who identifies as Asian, starting working for car dealership Listers Group as a sales executive at its Coventry Audi showroom in August 2011. In late 2016, Bali had to bring his two young children to the showroom after his childcare fell through, causing an important customer to complain. Following the complaint, Bali said the attitude of his coworkers changed, triggering a series of events that led to his resignation.

Bali was signed off as unfit for work on 28 January 2017, and did not return before his employment had been terminated. He submitted a lengthy grievance letter on the same day, alleging bullying and harassment, sex and race discrimination, breaches of health and safety, and a failure to make reasonable adjustments.

Among the allegations were claims colleagues had referred to Bali as ‘Apu’ – referencing the character in The Simpsons – made racial jokes, gestures and accents when speaking to or near him, and passed offensive remarks such as “a ma ch***” and “a pane ch***” – phrases that translate to “mother*******” and “sister ******” 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.

Bali’s grievance was processed by head of human resources, Phillip Graddon, during which Bali sought to raise fresh allegations. However, during the grievance process, Bali was not directly asked about the allegations of racially motivated comments. Instead, the process focused on other less severe allegations, despite Graddon admitting to the tribunal the “ch***” comments were potentially highly offensive and he had failed to look into 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, Tim Bradshaw, the “ch***” allegation was again rejected, despite evidence from another colleague who said she had heard the phrases being directed towards Bali.

Bradshaw suggested Bali had been complicit in the situation. However, the only evidence to support this came from the main perpetrator, who was ultimately dismissed for gross misconduct over the comments. Bali’s grievance appeal continued to dismiss 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 a number of 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. Employment judge Broughton described this stance as “almost wilful blindness”.

“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,” the judgment read.

However, Broughton added Bali was a highly unreliable witness, stating: “As with many of [the claimant’s] allegations, over time they appear to have been exaggerated and embellished as was the alleged effect that they had on him.”

In particular, his claims he had been referred to as “Apu” were dismissed, as the complaint did not form part of his original allegation and there were no reliable witnesses. The judge also rejected Bali’s claims for constructive unfair dismissal and notice pay.

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 Bali’s exaggerations. A provisional remedy hearing has been scheduled in case the two parties cannot come to an agreement on their own.

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