The claimant was employed as a Customer Insight Analyst for the respondent from January 2019 until December 2020.  The claimant is of Eastern European descent and his nationality is Polish.

One of the issues arising relates to the interactions that the claimant had with another colleague.  Although not in the same team, they still spent considerable time together both in work and socially.  This included a range of messages on work and personal phones.  Some of the comments related to videos relating to ‘Ali G’ including ‘Borat’.  The claimant, in response to those messages, said that Sacha Baron Cohen was a ‘legend’ and found Borat to be ‘amusing’. There are many references to ‘gypsy’ made by Borat and this was a theme of the case.  Many of the accusations made by the claimant related to being called a gypsy by this colleague both in person and through WhatsApp message.  There were messages in which the colleague had used ‘gypsy’ in relation to the claimant but there were also instances in which the claimant used it to the other colleague.  The Tribunal did find that the colleague had referred to the claimant as a ‘cheap boy’ and a ‘Typical gipsy’ (sic).

There were further messages with different elements.  These were in polish some of which were translated as ‘don’t be late bitch’ and ‘you are fired, there’s no gypsy work for you’ to which the claimant replied with laughing emojis to each one.  The claimant also used similar language with the colleague.  It was only after his dismissal in December 2020 that the claimant raised the issue with the alleged discriminatory actions/harassment.

The issue for the Tribunal was whether the remarks amounted to unfavourable treatment in the sense that a reasonable worker would consider that they had been disadvantaged. The Tribunal found that whilst some of the comments were made they could not be satisfied that it was unwanted conduct from the claimant’s perspective.   Comments were made in the communication which suggested that it was not unwanted conduct.   They also found that the gypsy comment was in no sense connected with race. Instead, it was the fact that they had a friendly relationship and conversed in a jovial manner.  The Tribunal accepted the respondent’s submission that whilst the comments were, on the face of it, offensive so too were the claimant’s comments made in that exchange.  The context was to be appreciated in that it was part of the friendship between the two individuals and the statutory test had not been satisfied. As a result of accepting this element, the case was dismissed.

Practical Lessons:

The cases citing ‘banter’ do not ordinarily go in favour of the employer but in this situation it did.  Perhaps it was because there was not a huge issue made of it being ‘banter’ but rather the respondent sought to focus on the context of the communication as they were being made between friends.  It was also only brought to light to the respondent following the dismissal of the claimant and the evidence that could be shown could also demonstrate the claimant’s conduct which is important in demonstrating whether the statutory test had been satisfied.
Mr L Kabzinski v Vistajet International Ltd: 2200745/2021 - GOV.UK (www.gov.uk)