Sticks and stones may break your bones, but names will never harm you? Think again. Something you intended to be a joke or good-natured banter everyone at work would find funny might just create an intimidating, hostile, degrading, humiliating or offensive environment for one individual and therefore has the potential to amount to discrimination or harassment.
Take for example Mr Nolan’s work colleagues who nicknamed him Yoda and played a number of age-related pranks including changing his number plate for “OAB” to “OAP”. That, found the Employment Tribunal, demonstrated an age bias against an older worker and was age discrimination. Or the manager who called a young worker “teenager” and “kid” and the use of these words was found by another Employment Tribunal to amount to harassment. That cost the employer £2000 in compensation for injury to feelings.
What will turn a comment – either made in jest or the heat of the moment – from just a comment into harassment is context. It must be unwanted, cause offence and relate to a protected characteristic (age, disability, sex, race etc.). So, despite there existing a bad relationship between two work colleagues where one would call the other a b***** and threaten to “rip his head off” it is still harassment for the other to retaliate by calling him, a wheelchair user, “Ironside”. Non-discriminatory offensive behaviour will rarely be a barrier to claiming harassment. This spat between feuding employees cost the employer £6,000 in compensation for injury to feelings.
However, where one individual, of mixed race, from a group of work colleagues, who all enjoyed an afternoon of exchanging jovial insults with each other (and had in fact been inviting insults) then complains that when he called one colleague a “fat b****** like Johnny Vegas” he retaliated by calling him “the monkey” from the T.V advert for PG Tips, he was not the victim of race discrimination or harassment.
Perhaps you recognise this type of banter and high jinks in your workplace and had thought nothing of it. But you can see just how easy it is for this to cross the line into unlawful conduct, especially when you have no control over whether or not it causes offence. And if you have not taken all reasonable steps to prevent the discrimination in question you will be liable for the acts of your employees when a claim is made.
On the other hand, if your workplace is genuinely one of the few where discriminatory nicknames are never used, don’t yet breathe a sigh of relief. In some circumstances, where name calling or pranks are going on, and they are persistent or targeted, it may amount to a breach of the implied duty of trust and confidence and could give rise to a constructive dismissal claim.
The answer is to take all reasonable steps to prevent discrimination, harassment and bullying. The name of the game is to have a Dignity at Work Policy, educate and train your managers and staff on its contents and enforce it. No-one wants to be a kill joy but when you’re facing uncapped compensatory awards at the Employment Tribunal lead by example and be aware of the potential for office banter to over step the mark.
Donna Reynolds is an experienced Employment Lawyer and expert HR Advisor helping SMEs throughout Fife, Edinburgh and Scotland.