Latest case confirms harassment claims are fact sensitive and be mindful of office banter

Written by Brabners LLP

 

In the recent case of Evan v Xactly Corporation Limited [2018], the Employment Appeal Tribunal (EAT) confirmed that in an office where there was a culture of banter – which included jibing and teasing where no one was seeking to offend and no one was found to be offended – the tribunal was entitled to find that a colleague calling the claimant a “fat ginger pikey” did not amount to race or disability harassment.

The law of harassment

The general definition of harassment is set out in section 26 of the Equality Act 2010 (the “Act”).  That section states that:

 “A person (A) harasses another (B) – if (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B”.

This applies to most of the protected characteristics under discrimination law, including harassment because of: age; disability; gender reassignment; race; religion or belief; sex; and sexual orientation (section 26(5)).

The effect of harassment is considered subjectively, namely from the perception of the person bringing the claim.  This means that, even if there was no intention to harass, what matters is the perception of person B and whether the definition is met. This initially sounds onerous on employers, especially in an office environment where many people engage in “office banter”.

However, the tribunal will then consider whether it was reasonable for the conduct to have that effect. This provides a check on the test and means that a claim for harassment should not succeed where the victim is “hypersensitive”.  

The facts of the case

In Evans v Xactly Corporation Limited, Mr Evans was a sales representative for a global software company. He was employed for just short of a year when he was dismissed for poor performance. He subsequently brought a variety of claims at the employment tribunal, including a claim for harassment as a result of being called a “fat ginger pikey”.

Mr Evans claimed that this amounted to harassment on the grounds of race and disability because of his links to the traveller community and the fact he was diabetic and self-conscious about his weight.

The tribunal stated that, on the face of it, the comment could be discriminatory and amount to harassment. However, on the facts of the case, it was not.

The fact that Mr Evans had not complained about the comment until over 7 months after it had been made; that he had also used offensive language in the office himself and actively participated in the “office banter” culture were all relevant.  It led the tribunal to find that Mr Evans had not found the comment inappropriate or unwelcome at the time it was made.

Despite the dismissal of the claim on these particular facts, employers must remember that if the facts and context had been different, Xactly Corporation Limited may well have been found liable for harassment.  

Learning points

This case reminds employers to be mindful of “office banter” and to make sure that clear policies are in place before things go too far. Employers should take any allegations of bullying and harassment seriously, and should make sure that all staff are aware of what kind of humour and language is appropriate in the workplace.  

 

This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership

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