Keep Informed: New case criticises workplace “banter” and awards £54,000 for race and sexual orientation discrimination


The case of Hoch v Thor Atkinson Steel Fabrications, although not “ground breaking”, is a perfect demonstration of the issues that employers can face where they try to hide behind the defence of “workplace banter”. It also provides numerous examples of race discrimination (although the claimant was a white South African), and sexual orientation discrimination (although the Claimant himself was straight).


The Claimant was hired by the Respondent, which is a company ran by Mr and Mrs Atkinson as co-directors. Whilst employed, the Claimant endured harassment related to race and related to sexual orientation. This included calling him a “foreign c***” and “immigrant”, rather than addressing him by his name, and using particularly offensive racist language which we shall not repeat here. In the early part of his employment, he was also called a “pretty boy” and “gay boy” by the director, and when challenged on this language Mr Atkinson replied that the Claimant “needed to get a f***** grip and man up.”

The Claimant repeatedly stated that he didn’t appreciate being referred to with that language, and the evidence showed that he was belittled to such an extent that he eventually went to his GP for support. He resigned on return from his holiday, stating that “I frequently receive unwanted conduct directly from yourself, which I find threatening, abusive, degrading, racist, and a violation of my personal self. The way in which you constantly address me and have done so over a prolonged period of time, had made me ill to the point I have had to seek medical attention”. The Respondent replied offering that Mrs Atkinson (who was obviously conflicted) could undertake a grievance investigation, and when this was rejected, they instead offered that a cleaner could undertake the investigation.


The defence by the Respondent, alongside a blanket denial that the phrases were used (despite there being evidence by way of text messages and recordings), was that:

  • All comments were part of office banter and therefore not uninvited or unwanted;
  • They were not intended to create and cannot reasonably be said to have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.

In support of this defence, the Respondent searched historically through the Claimant’s Facebook page, and found one post from 2012 as evidence that he also referred to the English as “English pricks”. They also found three texts to indicate a “friendly relationship” and found that the Claimant often used the South African flag in emoji form in his text messages.


The judge found that the comments made amounted in principle to harassment related to race and sexual orientation. The sexual orientation allegation was upheld as it was more probable than not that the comments had been made with the (incorrect) perception that the Claimant was gay.


No evidence has in fact been produced, despite the apparent exhaustive searches on the part of the respondent, to suggest any support for the contention that the claimant encouraged or instigated matters in any direct way.” (para 70).

The argument that any exchange could amount to nothing more than “office banter” was rejected, and the judgment was also particularly damning of the Respondent’s (in particular the directors’) credibility and honesty in persisting with this argument to trial.

It was thereafter found that the Claimant had resigned in response to the breach of the implied term of good faith, this breach being the harassment and the general approach to him personally, because of this protected characteristics (

The remedy hearing has not yet been published, but it is understood that the Claimant was awarded £54,000. Given that it is understood he obtained alternative employment, quite a substantial amount of this would have been an award for injury to feelings (which is awarded because of the successful claims for discrimination)

What can you learn?

This case is a particularly good lesson in the limits of “banter” and when harassment becomes unwanted conduct. It goes without saying that, generally, you should avoid creating a workplace culture where such language and treatment is an accepted part of office culture. Anti-discrimination should feature in your indication and be followed up with regular training and coupled with clear policies on what is and is not acceptable, making it clear to employees that this conduct will not be tolerated in the workplace.

This case also serves as a reminder of the importance of engaging employment law and HR advice from the outset, as no doubt this could have been dealt with in a much more cost-effective manner

If you want support with integrating anti-harassment policies and training into your workplace or you need support and guidance with a live issue then please contact or click here and fill out the form to arrange a call with one of our experienced team.

Written by Jodie Hill and Alicia Collinson.

Related Articles

The Telegraph- Business 24 October 2018

Life in Lockdown: The Distressing Rise in Domestic Abuse and How Employers Can Help

A barristers analysis of holiday pay and furlough

Women Through the Cracks

SSP and Travel

June’s Top 10 FAQ’s

Hill v Lloyds Bank: Discrimination and Mental Health

Pride month – LGBT legal leaders

Test and Trace update

Furlough Fraud

Commission under Furlough

Marital Discrimination: What Happens when Your Employees Split?

Disability & Shielding

Future of Furlough

Returning to work safely following Covid-19

A Four Day Week – Is It The Future?

Utilising Technology for Mental Health Support during Covid-19

#BLACKLIVESMATTER – HR professionals and their role in tackling racism, and what we are doing at Thrive Law

The importance of Redundancy Consultation – the problem with Jamie’s Italian

LGBTQ+ Figures in the Legal Sector

Calculating notice pay for employees on furlough

The Future of Furlough

Test and Trace: Employer’s Obligations

Life in Lockdown: How it has impacted the #ThriveTribe

Life in Lockdown: The Impact of Grief and Employees’ Rights

Managing my Mental Health as a Mother

Life in Lockdown: NHS Staff and Possible PTSD After COVID-19

Health Care Workers and PPE Concerns: What are Their Duties and How Are They Protected?

The effect of lockdown on diversity in the workplace

Observing Ramadan during Lockdown

Emergency Volunteering Leave

Dealing with redundancy during COVID-19

Health and safety dismissals: An employee’s right to stay safe during a pandemic

Unfurloughing employees

Sleep and mental health

Raising concerns amid Covid-19: Are Employees Protected?

Maintaining your teams Mental Wellbeing (whilst working from home/Furlough)

Workplace Safety: 10 Important Steps to Making Your Workplace Safer for Employees

Airline crew launch “Project Wingman”

Statutory Sick Pay and Coronavirus

Why is sleep so important?

Pregnancy, Maternity and Furlough

Flexible working – is it possible in a law firm?

The superhero firms helping out in the coronavirus crisis

What are the Signs of Stress?

Statutory Duties owed by a Director of a Company; and How Do They Work with Furlough?

Coronavirus and Apprenticeships

Furlough and Annual Leave: How does it work?

Vulnerable and shielded employees; what are your rights?

The Coronavirus Act 2020

Workplace Accessibility: Is your workplace accessible to people with disabilities?

Coronavirus – FAQ’s

In the News: Coronavirus Employer obligations

UK in Lockdown – What You Need to Know

The F Word – Furlough

Short Time and Layoffs

School Closures

The Impact of Coronavirus on Employment – The Home Working Revolution

How to Prepare for a Remote Workforce

Coronavirus is contagious, but panic is too

What are the different types of Whistleblowing?

The Coronavirus and Flexible Working – What Your Organisation Can Do

Key Employment Law Changes in 2020

IR35 Changes – What do you need to know?

In the Media: Fairhall v University Hospital of North Tees & Hartlepool Foundation Trust

There’s a Storm Coming: Do You Have an Adverse Weather Policy for Employees?

May Bank Holiday Change Blog- All Change for 2020!

LGBT+ History Month

Can you sack someone who works in a supermarket and refuses to handle money?

In The News: Bereavement Leave

The Thrive Tribe’s Christmas Holiday

In The News: Discrimination and Equal Pay

Keep Informed: Its Beginning to Look A Lot Like Brexit – What will the Withdrawal Bill Mean for Employment Rights?

Bring Your Dog to Work – For More Than Just a Day?

In the News: Hangover Days

Political Discourse and Voting at Work: What are Employees’ Rights?

Vegetarianism & Veganism – Are they protected as Philosophical Beliefs?

Diversity: More than just Box-Ticking and Policies

Drugs and Alcohol Policy: Support or Discipline?

Bullying and Harassment in the Workplace

Yorkshire Legal Awards: Diversity and Inclusion Award

Yorkshire Post Excellence in Business: Social Mobility Award

Topic UK Magazine October 2019

Calling Time on the Booze Culture

Mental health discrimination is limiting the opportunities in the workplace for those who have served in the armed forces

How to Thrive – Top tips to reduce stress in your organisation

Asda’s Employment Contract Changes: Fair or Foolish?

Keep Informed: MacDonald’s CEO dismissed for relationship at work

How to Handle Allergies in the Workplace

Menopause in the Workplace

The 4 Day Week Report

Feeling SAD?

Keep Informed: New case criticises workplace “banter” and awards £54,000 for race and sexual orientation discrimination

Surviving or Thriving?

Keep Informed: Women and Equalities Committee proposes changes to enforcement of discrimination rights

The Good Work Plan

Working 9 to 5, 4 Days a Week…?

Is your organisation ready for Generation Z?

Thriving In The Workplace and the #OneMind Petition

Dyslexia in the Workplace

Overpayments and Deductions from wages

The UK’s increasingly diabetic workforce

TheBusinessDesk: Further expansion for law firm; Promotions at engineering specialist; and more

LGBTQIA+ in the Workplace

Eid in the Workplace

Neurodiversity in the Workplace

Leeds & Yorkshire Lawyer Magazine – 11th April 2019

Recruiting Times – 12th February 2019 Employment contracts: What to check for before accepting the job

HR News – 6th February 2019 Over half of working Brits have accepted a job offer without checking the contract first.

Yorkshire Legal News – Thrive Law continues rapid growth – 12th November 2018

BR Online: Employee wellbeing and human capital – November 2018

MMB Magazine – 5 November 2018

H & N Magazine 3 October 2018

South Leeds Life 3 October 2018

The Yorkshire Post 10 October 2018

Article in People Management- “Employers must do more to tackle male ‘stigma’ around shared parental leave” – 30th July

The Business Desk- “Independent law firm launches in Yorkshire”– July 16th

Interview with Ascension Club Leeds- July 11th

Law Society Gazette – 3rd May 2018

Stylist Magazine – 21st May

Yorkshire Post – 2 May 2018 – Greg Wright The Case for introducing mental health first aiders at work

What Is YOUR Workplace Doing for Ramadan?

April Updates in Employment Law

Thoughts On “Gagging Orders”

Time to Talk Day 2019

The Loneliness Epidemic

Thrive’s round up of 2018!

To talk or not to talk?

Why employers should exercise caution when using NDAs

Being your true self at work boosts mental wellbeing and performance

How to spot and eliminate risks of office workplace accidents

Why The Best Investment Is In Your Mental Health

Supporting LGBT+ Mental Health in the Workplace

What your employer needs to know when your child has a mental health illness – guest blog

The Do’s And Don’t For A Happy Employee – Guest Blog

HR leading the way into GDPR compliance for businesses

Dealing with stress in the workplace

Welcome to our new website and blog!