Discrimination at work
Part one: Office banter | 2013
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Discrimination at work | Part one: Office banter | 2013
About this report
This report examines some of the factors contributing to discrimination at work.
A&O conducted a quantitative survey with 1,163 UK adult workers via YouGov
looking at the attitudes towards office banter and the extent to which workers
understand the difference between lawful and unlawful comments that can lead
to harassment claims.
This survey was conducted using an online interview administered to members
of the YouGov Plc GB panel of 350,000+ individuals who have agreed to take
part in surveys. Fieldwork was undertaken between 12 - 18 September
2012 and this sample has been weighted to be representative of UK workers.
The charts below illustrate the sample by sector, size of
organisation and industry.
Which sector do you work in?
Public 21%
Private 72%
Third Sector 7%
© Allen & Overy LLP 2013
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What industry do you work in?
Education, Health and social work,
Public administration, services and defence
Finance / IT, computers / Media / Professional services
Leisure and hospitality / Retail
Manufacturing and engineering
Communications / Transport, distribution and storage
Construction
Electricity, gas and water supply
Other
0
10%
20%
30%
40%
50%
0
10%
20%
30%
40%
50%
How many people does your company employ?
250+
50 to 249
21 to 49
10 to 20
0
10%
20%
30%
40%
50%
60%
70%
0
10%
20%
30%
40%
50%
60%
70%
2 to 9
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Discrimination at work | Part one: Office banter | 2013
Office Banter
We all love a bit a banter. Happy workplaces are productive
workplaces. So what’s the problem? One of the most
difficult messages to give to your workers is that joking
and banter may stray into unlawful territory and turn into
a discrimination or harassment claim. So it’s important for
workers to know what’s what.
The problem is that language, laws, diversity,
cultural mores and office practices are not static;
they are constantly changing.
Just a decade ago, treating workers or job applicants
differently because of their religion or belief, sexual
orientation or age would not have been unlawful. Less than
40 years ago, discriminating on the grounds of gender or
race was not only lawful but it was common practice.
Are workers aware of what is lawful and what is not?
Allen & Overy decided to survey the nation’s workers on
their knowledge and experience of workplace discrimination.
The first in our series of reports addresses the issue of office
banter and discriminatory comments.
Here’s what we found.
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Perception
The overwhelming majority of
respondents (80%) think they can
easily draw the line between banter and
bullying. And therein lies the problem.
The perception is that everyone knows
the difference, but analysis of the statistics
shows something rather different.
80%
UK workers think they can draw the line between banter and unlawful comments
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Discrimination at work | Part one: Office banter | 2013
Which of the following do you think could be unlawful?
Swearing
65%
No
26%
Yes
9%
don’t know
Blaspheming
59%
No
30%
Yes
11%
don’t know
Displaying a calendar at work of a semi-naked male/female model
46%
No
© Allen & Overy LLP 2013
42%
Yes
12%
don’t know
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It is unlikely that swearing by itself would amount to discrimination/harassment
provided it is not directed at any particular protected characteristic. In some
circumstances, however, where it is persistent or targeted, it is likely to amount to
a breach of the duty of mutual trust and confidence and therefore a breach of contract.
This might be the case where a boss used inappropriate language as a means of control.
Most respondents (65%) got it right, taking the view that swearing was not unlawful,
which is generally the case. But context is everything, and in some circumstances it
may stray across the line into unlawful conduct.
59% take the view that blaspheming does not amount to unlawful discrimination.
A further 11% were unclear. Repeated blaspheming may well create an intimidating,
hostile working environment for those of faith and therefore has the potential to
amount to religious harassment.
46% think that displaying a calendar at work of a semi-naked male/female model is not
unlawful. A further 12% do not know what the legal position is. This is just the type of
behaviour which, for some people, creates an intimidating, hostile, degrading or
offensive environment – prerequisites for a harassment claim.
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Discrimination at work | Part one: Office banter | 2013
Sending a work colleague a card and chocolates anonymously on Valentine’s day
78%
No
11%
Yes
10%
don’t know
Referring to your colleague as ‘coloured’
38%
No
© Allen & Overy LLP 2013
50%
Yes
12%
don’t know
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Most workers quite rightly assume that harassment describes conduct that is hostile
and/or intimidating. However, benign gestures can also amount to harassment,
where the conduct is unwanted. We asked respondents whether sending a work
colleague a card and chocolates anonymously on Valentine’s Day could be unlawful.
78% thought not. 10% were unsure, and only 11% thought this type of conduct could
be problematic. It can be. Imagine a workplace scenario where one of the male workers
has made advances to another co-worker. The co-worker has indicated that she is not
interested – perhaps she already has a partner – and the co-worker continues to pursue
her, including sending the anonymous chocolates on Valentine’s Day. It is this type
of conduct that might be the subject of a grievance, and ultimately a sexual
harassment claim.
A real example comes from an EAT case where the workplace had a culture where
banter was commonplace with most workers participating and getting along very well.
The “n” and “p” words were frequently used by black and ethnic minority workers,
and yet a successful racial harassment claim was made out on the basis of a single
incident where a white manager referred negatively to a colleague’s skin colour
(Queenscourt v Nyateka – EAT).
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Discrimination at work | Part one: Office banter | 2013
Inappropriate language
Language, labels and terminology are dynamic. What was
appropriate in 1960s Britain may be considered offensive
today. The term “coloured” as a reference to a person who
is wholly or partly of non-white descent is precisely one of
those terms. Centuries ago, it was used by emancipated
slaves as a term of racial pride, and up until 1960s and it was
common parlance in Britain. It is now generally considered
to be offensive, with the preferred term being “black”. But
geography plays a part too. In South Africa, for example,
the term coloured is not considered offensive or derogatory.
How are workers expected to know and deal with these
subtleties? To test the current state of knowledge, we asked
the workers if they thought referring to a colleague as
“coloured” was unlawful. 38% thought it was not, 12%
didn’t know, and the majority (50%) thought it
would be inappropriate.
Analysing the responses, we expected to see that workers
aged 55+ would be the ones who felt the term was
acceptable as they grew up with it. There was indeed an age
factor in the responses in that the younger the worker, the
more likely s/he thought the term was unlawful. But the
differential was not particularly significant. More significant
was the worker’s geographical region with the UK.
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But is it unlawful to refer to a colleague as
coloured? Yes maybe. This isn’t sitting on the
fence, it really does depend on the circumstances.
Is the term “coloured” unlawful?
Age
18-24
25-34
35-44
45-54
55+
Yes
57%
51%
51%
48%
48%
No
35%
35%
35%
42%
40%
Don’t know
9%
14%
14%
10%
13%
Government Office Region
North
Midlands
East
London
South
Wales
Scotland
N. Ireland
Yes
55%
43%
55%
53%
49%
54%
47%
35%
No
33%
44%
33%
33%
40%
37%
41%
54%
Don’t know
12%
13%
12%
13%
12%
9%
12%
11%
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Discrimination at work | Part one: Office banter | 2013
One of the essential elements of an harassment claim is that
the conduct must be unwanted. Some black workers may
not be offended by the term, some may use the term
themselves, others will be deeply offended.
What will take it from an innocent comment or
banter into an harassment claim-in-the-making
will be context.
For example, If a worker says “please don’t call me that as I
find it offensive, I prefer this” but the perpetrator persists,
the three elements of a harassment claim are made out:
–– the conduct is unwanted
–– it causes offence
–– it relates to a protected characteristic (race).
© Allen & Overy LLP 2013
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Who pays the piper?
The statistics clearly show that there is a knowledge
gap with workers when it comes to knowing when
office banter turns into something unlawful.
Are they bothered? Possibly not.
We asked the workers of the UK who they thought pays
the bill when compensation is awarded to a victim of
workplace harassment or discrimination. 42% are of the
opinion that the buck stops with their employer. Only 10%
appreciated that a worker can be personally liable to the
victim. The employer does pay the compensation as the
party with the deepest pockets, and the party with
vicarious liability for the acts of its workers done in the
course of their employment, as well direct liability for what
it does or does not do as an employer. But it is not
uncommon now to see workers (particularly senior workers)
joined into the proceedings and asked to contribute to the
compensation award.
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Discrimination at work | Part one: Office banter | 2013
Training and education
Why is the distance between perception and reality
so wide? Why are knowledge levels so low?
Doesn’t every business have a Dignity at Work or similar
policy, which spells out the rules and consequences for
non-compliance?
Most businesses do have such a policy. It makes commercial
sense to have a policy because happy workers are more
productive workers. It also makes commercial sense to
have a policy from a risk management perspective. It is a
defence to vicarious liability for an employer to show that it
took all reasonable steps to prevent the discriminatory
conduct from taking place, and the obvious starting point to
hook into this defence is to have a policy.
Given the commercial imperatives, our survey asked workers
if they had read their employer’s policy. The majority (55%)
had done so. However, when we asked whether they had
received training on it, the percentage slipped to 38%.
The “all reasonable steps” defence would require an employer
to do more than just have a policy on a shelf or on the
intranet. Workers need regular training on its implications and
their legal liability. Managers need to understand its contents,
how it operates, and how to lead by example.
© Allen & Overy LLP 2013
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“There’s a fine line between friendly,
acceptable banter and unlawful
harassment/discrimination. Encouraging
and educating workers to stay on the right
side of the line is not as easy as it sounds.
Karen Seward
Partner
Litigation Employment
Tel +44 20 3088 3936
karen.seward@allenovery.com
Time and time again, workers throw advice
in this area into the ‘political correctness’
box, not appreciating the litigation risks
or the impact on individuals. Story telling,
particularly from the victim’s perspective,
together with personalising the consequences
for finding yourself on the wrong side of the
line, are the most effective ways of getting
the message across.”
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FOR MORE INFORMATION, PLEASE CONTACT:
London
Allen & Overy LLP
One Bishops Square
London
E1 6AD
United Kingdom
Tel +44 20 3088 0000
Fax +44 20 3088 0088
Office contacts
Karen Seward
Sheila Fahy
Partner
Tel +44 20 3088 3936
PSL Counsel
Tel +44 20 3088 3681
karen.seward@allenovery.com
sheila.fahy@allenovery.com
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