I said I wasn’t going to write another football inspired post. But the events that unfolded last week in relation to text messages exchanged between former colleagues Malky Mackay and Iain Moody proves me unreliable.
If you missed the issue unfolding in the media, text messages sent by Mackay (while he was manager of Cardiff City) have been recovered. They include the following:
‘Fkn chinkys. Fk it. There’s enough dogs in Cardiff for us all to go around.’ (On the arrival of a player from South Korea)
‘He’s a gay snake’ (About another club’s official)
‘I hope she’s looking after your needs. I bet you’d love a bounce on her falsies’. (Referring to a female agent).
There are others, all of a similar casual discriminatory nature.
These were bad enough on their own. However, shortly after the messages were published by a newspaper, the League Manager’s Association issued a statement that referred to the messages as ‘letting off steam to a friend’ and ‘friendly text message banter’. They have since apologised for the statement, calling it ‘inappropriate’.
Banter is a word that strikes fear into the hearts of many a HR professional. And possibly glee into the hearts of the employment lawyer representing the other side.
Most HR folk have come across a banter defence in their time. That or one of its close cousins. Such as the ‘it was just a bit of fun’ excuse or the ‘it was a private conversation between two people’ alternative.
But scratch the surface of this particular attempt at behaviour justification, and you may well find some other, unpleasant implications underneath.
That the person complaining just doesn’t have a sense of humour.
That there was no harm intended so it doesn’t really matter.
That it’s not all that serious.
We all know that intention is neither here nor there when it comes to harassment or discrimination. That what matters is the impact of the behaviour or the language. It’s not just the purpose but the effect.
Here’s the thing. Banter is never, ever a defence or an excuse for discrimination, bullying or harassment. Not in the employment tribunal, not anywhere.
Saying that you are not a racist, sexist or homophobe, whether to the public via the media or just a panel of three in the ET, when your behaviour or language has already told its own story, will simply not cut it. You can be sure that the ET Judge has heard it all before, once or twice.
I don’t need to get the Equality Act out to check the wording in the clauses either. If you are ever tempted to use banter as an excuse, its dictionary definition is explanation enough. Good humoured. Playful conversation. Light hearted. Mildly teasing. The text messages above are not most reasonable people’s definition of good humour.
Instead of the banter justification, I would instead advocate using the complete pillock defence. As in admitting you have behaved like one. Followed by a grovelling apology.
You can’t undo harassment or bulling once it has taken place. But you can avoid pointless legal expense, or the implication that you just don’t care about equality, by leaving this particular word where it belong. With The Inbetweeners.
Thank you to @the100 for allowing me to reproduce the above image.