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Employment Law Case Update: Banter and Sexism in the Workplace

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Our Employment Law team today review the case of Anca Lacatus v Barclays 2021 in which the claimant, a junior banker at Barclays Bank, claimed sex discrimination against her boss for repeatedly using the expression birdsin the workplace. The case led the question; can banter in the workplace can amount to discrimination?

Ms Lacatus claimed that her manager, Mr Kinghorn, referred to a female employee as a ‘bird’ in February 2018. She claimed that she immediately told him he should not use that phrase, but that Mr Kinghorn continued to use the expression, making Ms Lacatus feel uncomfortable. Mr Kinghorn also said that ‘she should not report him to HR’.

Mr Kinghorn did not dispute that he had used the phrase ‘bird’, but disputed the amount of times he had been accused of using it, suggesting that he had done so on perhaps two occasions but stopped when Ms Lacatus had made him aware of how it made her feel.

In order to establish whether or not Ms Lacatus had been directly discriminated against, the Employment Tribunal (ET) first had to determine whether Ms Lacatus had been treated less favourably (i.e. had she been offended by Mr Kinghorn's use of the expression 'birds', and did its use accordingly put her at a disadvantage?); and secondly whether that was because of her sex.

The ET heard evidence that Ms Lacatus had objected to Mr Kinghorn's use of the word the first time he used it. Mr Kinghorn had continued to use it in what the judge described as a "rather puerile attempt to be ironic". The ET accepted that Ms Lacatus was offended by the use of the word and “ought not [to] have been expected to appreciate that derogatory language can be used in an ironic manner”. The judge said that the language used was derogatory and "plainly sexist" and amounted to something that a reasonable employee could consider to be a disadvantage.

The fact that the term was used to refer to women meant there was no doubt that the comments were made because of Ms Lacatus' sex. Despite the fact that Ms Lacatus had not immediately raised the issue as a formal grievance, her claim for direct discrimination succeeded. The ET reasoned that Ms Lacatus delayed raising the issue of Mr Kinghorn’s sexist language because she was in a junior position within the company and was worried that raising the issue could damage her career.

The case highlights that jokes and banter, despite their innocent intent, can constitute discrimination. This is still the case even where the person who is disadvantaged by the comments fails to make a strong objection. Employers should be alert to the fact that some employees, due to their position, may be too afraid to protest against inappropriate behaviour, and should implement policies and procedures to help employees feel comfortable speaking up.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.