Nil by mouth

Each individual is entitled to determine what they find to be acceptable or unacceptable – it's the impact of the behaviour that counts, and not the intent behind it. However, it's not enough for any member of staff to merely show that an offensive remark was made to be successful in a discrimination claim. The applicant also has to clearly demonstrate that he or she has suffered a detriment in the process.

Testing times for banter
The whole issue of banter in the workplace – and the legal tests to be adopted – was recently considered by the Employment Appeals Tribunal (EAT) in the case involving Thomas versus Robinson. In this case the applicant, who is of black Afro-Caribbean origin, had racist remarks made to her by a female colleague (who had suggested the applicant's dog was "frightened of black people" and that Muslim women look like "Ninjas").

Having found out that the applicant's family had recently returned to the Caribbean, her colleague further commented that "they come over here, scrounge off the system and then go back home".

The subsequent tribunal found that the dog and Ninja remarks didn't amount to discrimination against the applicant because they weren't addressed to her on the grounds of race. The tribunal found that the applicant's colleague would have used such terms to anybody, regardless of their race. However, the tribunal did find that the comment suggesting that those of an Afro-Caribbean origin come to this country only to "scrounge off the system" did constitute racial harassment.

However, the problem was that when the solicitor for the respondents sought to question the applicant about the remark itself and its effects upon her, the chairman of the tribunal stepped in and prevented any further cross-examination on the subject on the basis that all racial abuse should be viewed as detrimental treatment.

On appeal, the EAT acknowledged that the very act of abusing someone in respect of their race is, in itself, less favourable treatment on racial grounds, but emphasised that the applicant still has to produce evidence to demonstrate that they have themselves suffered some detriment as a result of the abuse.

Two sides to harassment
Here, the EAT considered that the expression 'harassment' involves two elements. The first is the targeting of the person being harassed. The second is the causing of distress to the target. As such, the employment tribunal had erred in law by making a finding of racial harassment without considering whether the applicant had suffered some detriment as a result, and in preventing the appellants from cross-examining her to show that there was not.

Fine so far, because clearly even if an offensive remark has been made, if the person on the receiving end isn't offended by it then no damage has been done. However, the consistent findings from vast tracts of research into harassment and its impact on victims would be at odds with the EAT's final remark on the subject, when the following statement was made...: "There are some working environments in which (undesirable though it may be) racial abuse is given and taken in good part by members of different ethnic groups. In such cases, the mere making of a racist remark could not be regarded as a detriment."

One of the classic phenomena of harassment is 'under-reporting'. Members of your security team will either suffer in silence or may appear to take it "in good part", when in reality they feel both humiliated and outraged. There are a number of reasons for under-reporting, but the most common is that individuals fear if they do object they'll be accused of spoiling everyone's fun, and will not be seen to fit in.

"Think before you speak"
Of course, it's not really possible to give security managers guidelines as to what members of their staff can and cannot say. However, with the greatest respect to the EAT, the important message for everyone should be that banter is no excuse for harassment – purely on the basis that one person's idea of a joke may well be another person's definition of offensive behaviour. The dividing line is a thin one, and it's better to be safe rather than sorry.

With new Government legislation outlawing discrimination on the grounds of religion or belief due in December 2003, it’s impossible to believe that any professional working environment would tolerate certain kinds of remarks on the basis that they r

As a preventative mechanism, managers should encourage their staff to "think before they speak". It's impossible to believe that any professional working environment would tolerate remarks such as those which were highlighted in this case on the basis that it was just good natured fun or that it was "given and taken in good part by members of different ethnic groups".

At the end of the day, such behaviour ruins any credible attempt by an employer to claim that the business embraces diversity.

What about that holiday pay?
Another area of contention surrounding employment law at the moment concerns the thorny topic of entitlement to holiday pay once a Contract of Employment has been terminated. Where an employee's contract of employment comes to an end, the employee is entitled to receive payment for any holiday entitlement that has not been taken at the date of termination.

Of late, the Court of Appeal has clarified – in the case involving Evans versus Malley Organisation Ltd (t/a First Business Support) – how such a payment is to be calculated where the employee is paid a basic salary.

The facts of this particular case are relatively simple. Mr Evans resigned while under suspension on the grounds that his employers believed he was about to leave in order to start work at one of the company's competitor organisations. His Contract of Employment entitled him to payment of a basic salary (plus commission) for contracts he brought into the business. Evans' entitlement to commission arose once a new client had paid a quarter of the overall fee due under such a contract which normally took place nine months after the contract had been negotiated.

The employee's Contract of Employment also expressly stated that holiday pay was paid at his basic rate of pay. During employment, any commission falling due during a holiday period was also paid to Mr Evans. At the end of his employment, Evans' final payment – which included his period of suspension and his outstanding holiday – was paid to him at his basic rate of pay. Mr Evans contended that he should have been paid on the basis of both his basic rate of pay and his average earnings in excess of basic pay (based upon his entitlement to commission).

The Employment Rights Act 1996
While the Working Time Regulations provide employees with a statutory right to a paid holiday entitlement, they don't contain the mechanism for calculating the appropriate rate of pay – referring instead to provisions within the Employment Rights Act 1996 on calculating a week's pay. These rules specify that:

• where an employee has no normal hours of work, a week's pay is the average amount of pay as calculated over the preceding 12-weeks;
  
• where an employee has normal hours of work, and their pay doesn't vary with the amount of work done, a week's pay is the normal amount payable by way of salary under the Contract of Employment;
  
• where an employee has normal hours of work, but their pay does vary with the amount of work done, then a week's pay is the average amount of pay calculated over the preceding 12-week period.

It was generally thought by most employers – and indeed company lawyers – that in those circumstances where an employee is entitled to basic pay and commission, this tends to fall within the last of the above-mentioned scenarios.

However, in the case highlighted here, the Court of Appeal examined both the reality of Mr Evans' situation and the law, concluding that:

• the amount of basic pay he received didn't vary from month to month;
  
• commission received by an employee is only to be taken into account where this related to the amount of work completed.

An averaging process is needed
The Court of Appeal suggested that, with regard to the work carried out by Mr Evans, the amount of time spent attempting to unsuccessfully persuade a client to sign a contract would be comparable to the amount of time used to successfully acquire a new client for the company. Conversely the averaging process is necessary to make a fair adjustment for pieceworkers where there are often marked variations in the amount of work completed that's directly linked to the amount of effort and hours of work undertaken.