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Employment Appeal Tribunal finds no harassment where the “victim” had previously engaged in office banter

Employment law is designed to protect employees from harassment at work, particularly where there has been discrimination based on protected characteristics such as race or disability.

In a recent case (Evans v Xactly Corporation Limited), the Employment Appeal Tribunal found that comments made to a salesman, Mr David Evans, by his boss and colleagues at US tech company, Xactly, that he was a “fat ginger pikey”’ as well as a “fat Yoda” and “salad dodger” did not amount to race and disability discrimination.

Mr Evans was employed for less than a year before he was dismissed for poor performance by Xactly. He brought a number of claims under the Equality Act 2010 including discrimination and harassment on the grounds of:

  • disability – because he had type 1 diabetes and an under active thyroid which he claimed was the reason for his weight gain; and
  • race – due to his association with the Traveller community.

Mr Evans engaged in office banter and was known to use the “c word” in office conversations.  The Judge noted that the “fat ginger pikey” comment could have been considered harassment but pointed out that Mr Evans had not reacted or complained at the time the comment was made.

The tribunal considered the statutory definition of “harassment” (section 26 of the Equality Act 2010) and decided that the comments:

  1. were not unwanted, since Mr Evans was such an active participant in the culture of office banter;
  2. did not have the purpose of violating Mr Evans’ dignity or creating an intimidating environment for him;
  3. did not have the effect of violating Mr Evans’ dignity or creating an intimidating environment for him, as he was not offended.

They said that, in any event, it would not have been reasonable for Mr Evans to have considered his dignity was violated or the environment was hostile, given the particular circumstances and all the context and material facts relevant to the claim.

Key points to take away:

  • Context is key when it comes to complaints of harassment.
  • Harassment is assessed both subjectively and objectively. In taking into account whether someone has been harassed, an Employment Tribunal will look at the perception of the individual and the other circumstances surrounding the offending conduct, before determining whether it is reasonable for the person to have been offended in the circumstances.
  • If you think you have been subject to harassment under the Equality Act 2010 in the workplace, then take the relevant steps to report such behaviour sooner rather than later to the relevant person and ensure a written note has been filed by your employer.
  • Be aware that if you participate in offensive office banter it may be used against you, if you subsequently complain about comments made to you.

This decision provides no reason for employers to ignore potentially offensive behaviour in the office.  While a bit of office banter may help create a happy workplace, if the nature of that banter oversteps the bounds of acceptable conduct then problems and potential claims are likely to arise.  Employers should ensure that they have appropriate policies, procedures and training in place, so that all employees understand what is and what is not acceptable conduct.  Employers must be able to deal with unacceptable conduct, if and when it arises. If you have any questions about harassment or discrimination in the workplace, please contact Vaishali Kapadia on 020 7288 4752 or at vaishalikapadia@boltburdon.co.uk. or  a member of our employment team  who will be able to provide you with practical advice and guidance.

 

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