Harper v Housing 21 – “banter” about protected characteristics will normally constitute discrimination

redmans-blog-analysisIn the case of Harper v Housing 21 ET/2408839/2012 an Employment Tribunal held that vulgar and offensive comments about a worker’s race (which were passed off as “banter” by the employer) constituted race-related harassment.

Ms Harper, who is Irish, worked at Housing 21, a retirement housing business. In 2011 she learned that she would have a new line manager, Nicola James. It quickly became apparent that there was a personality clash between Ms Harper and Ms James, with each accusing the other of being rude and, further, Ms Harper complaining that her work was examined more rigorously than others and that her hours had been reduced without explanation. Ms Harper also complained about Ms James’ attitude towards her Irish nationality, alleging that Ms James did the following:

  • That Ms James described Ms Harper as having a “funny accent”
  • That Ms James would describe Ms Harper as an “Irish gypsy”
  • That Ms James would repeatedly liken Ms Harper to women who appeared on the reality TV series “My Big Fat Gypsy Wedding”

Ms Harper went on sick leave and raised a grievance regarding the comments that Ms Harper had made about her nationality (as well as other issues). An investigation took place and Ms Harper’s allegations regarding Ms James’ comments about her nationality were corroborated by other employees. Ms James stated in an investigation interview that her comments were “banter” and that there was no malice behind them.

Ms Harper was not able to attend a scheduled grievance hearing due to ill health and subsequently resigned before the grievance hearing, alleging that her position at Housing 21 had become “completely untenable”.

After resigning from her employment Ms Harper brought Employment Tribunal claims for direct race discrimination, race-related harassment, and constructive dismissal.

The Employment Tribunal upheld all of Ms Harper’s claims. With regards to her claim for direct race discrimination, the Tribunal held that Housing 21 had subjected Ms Harper to less favourable treatment by failing to properly investigate a number of Ms Harper’s complaints, including those related to the more rigorous spot-checks of Ms Harper’s work and the reduction of her hours. The Tribunal held that there were facts which could lead them to conclude that this less favourable treatment was because of her race, namely the references that Ms James had made to Ms Harper’s Irish nationality.

The Employment Tribunal also upheld Ms Harper’s harassment claim, finding that the comments by Ms James were only made because of Ms Harper’s Irish nationality and that Ms Harper had clearly been offended by the comments. Further, the Tribunal held that the comments also had the purpose of offending Ms Harper: Ms Harper and Ms James did not get on, it was reasonable for Ms Harper to dislike her line manager referring to her as a “gypsy”, and the Tribunal did not find it credible that Ms James’c comments were simply “banter”.

The Tribunal upheld Ms Harper’s constructive dismissal claim and ordered a further remedy hearing to determine compensation.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Any respondent that tries to argue that offensive comments relating to a claimant’s protected characteristic are ‘banter’ are likely to lose the case – ‘banter’ is generally a code-word for harassment to Employment Tribunals. Equally, a salutary lesson from this case should be that employers must undertake thorough and fair investigations when employees raise claims of discrimination or harassment – a failure to do so can potentially be discriminatory itself.”