“Banter” was harassment; recent unfair dismissal case

A firefighter who was sacked after offending a short, gay colleague by calling him ‘half a man’ was found to have been fairly dismissed.  The employee nicknamed fellow fireman Jonny Metcalfe ‘Arthur’ in reference to his size, but Mr Metcalfe took it to be a derogatory reference to his sexuality.

An employment tribunal heard that the nickname was derived because “Stumpy” or “Dwarf” were felt to be inappropriate alternative nicknames.   When challenged, the employee stated that he meant no harm and it was “just banter”. He denied that it was in any way a derogatory homophobic reference to Mr Metcalfe’s sexuality, explaining it by saying, ‘I call him Arthur, Arthur man, half a man… because of his size.

However, the tribunal heard investigation that the conversation had left Mr Metcalf feeling ‘offended and emotionally upset’ and he believed it was degrading as it referred to him being gay. The fire service investigation concluded that it was not the intention that the nick name was homophobic but recognised that it had nevertheless caused offence.  It was found that the employee had been previously warned against using inappropriate language and that his conduct had not improved since this warning.  It was also found that the use of such “banter” did not ‘demonstrate understanding in relation to dignity at work and inappropriate use of language’.

The employee was summarily dismissed, and having lost an appeal, raised a claim for unfair dismissal and breach of contract against North Yorkshire Fire and Rescue Service. The Employment Judge ruled that it was ‘reasonable’ for Mr Metcalfe to have viewed the comments as a reference to his sexual orientation and taken offence and dismissed his claim of unfair dismissal.

Interestingly, however, the Tribunal ruled that the conduct did not amount to gross misconduct and that therefore the employee was entitled to notice pay.