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Last week, England Rugby Union player Joe Marler was banned for two matches and fined £20,000 for calling Wales forward Samson Lee, who is from the Traveller community, 'Gypsy boy' during England's Six Nation's win over Wales in March.
Marler was initially cleared by the Six Nations, but admitted misconduct at a World Rugby disciplinary hearing in London on 5 April.
In the immediate aftermath of the match, both England head coach Eddie Jones and Wales head coach Warren Gatland described the comment as 'banter'. As an employment lawyer, I have been reflecting on how such a defence might have been dealt with in a different context, say a typical office environment.
In an employment context, if a comment such as Marler's related to a fellow employee's race, was unwanted and had the effect of violating their dignity or creating an intimidating, hostile, degrading humiliating or offensive environment, it could have constituted an act of unlawful racial harassment. To decide if it did have such an effect it would be necessary to take account of the subjective perception of the recipient, but also whether it is reasonable in all the circumstances for the conduct to have that effect.
Under the Equality Act 2010, race is defined to include colour, race, nationality or ethnic or national origins.
In 1989, the Court of Appeal specifically recognised in Commission for Racial Equality v Dutton that Romany gypsies are an ethnic group for the purposes of anti-discrimination law. The first judicial acknowledgement I can find that Irish travellers are also a separate ethnic group comes in the 2000 case of O'Leary & Others v Allied Domecq & Others.
However, the definition of 'ethnic origin' is interpreted very widely and would apply to a number of distinct communities within what is sometimes referred to collectively as the gypsy, Romany and traveller community (including English, Scottish and Welsh travellers).
There is little doubt, therefore, that this comment related to Lee's race. It has been reported that Lee accepted Marler's apology for the comment in the immediate aftermath of the match. If the recipient of such a comment in the workplace is not offended by it, an employer may take that fact into account. However, it need not be the person at whom the comment is aimed who is harassed by it.
The likely weakness of Jones' 'banter' is illustrated in the Court of Appeal decision of English v Thomas Sanderson Limited in 2008, where the Court held that a homophobic slur which was characterised as banter was capable of amounting to harassment on the grounds of sexual orientation. The key point is that it is not the intention of the person making the comment that is important in deciding whether such comment may amount to unlawful harassment: it is that of the recipient (although their perspective has to be reasonable in the context of the case).
I have engaged in a bit of an artificial exercise to try to transpose the head of the rugby pitch to an office workspace. However, in that different context, there is little doubt that an attempt to defend a comment such as Marler's as banter would have little impact. The Six Nations organisers appear to have felt that Marler's apology and Lee's acceptance were important mitigating factors. World Rugby clearly did not agree.
It must be remembered that in an employment context, an employer can be held legally responsible for acts of discrimination, harassment and victimisation carried out by workers employed by them in the course of their employment. Employers can reduce the risk of picking up liabilities in these circumstances by ensuring that its staff receive good training, and that they have a clear dignity at work policy and code of conduct in place.