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When does “office banter” amount to harassment?

The Employment Appeal Tribunal in Evans v Xactly Corporation Limited has considered a case of harassment.

Background

The Claimant was employed by Xactly Corporation Ltd (“the Company”) as a salesman.  After almost one year of employment he had failed to make a single sale and was put on a performance improvement plan. He was later dismissed for poor performance.
The Claimant brought claims for discrimination, victimisation and harassment on the grounds of disability and race.

The Claimant had type 1 diabetes and an under-active thyroid and he alleged that these conditions caused him to gain weight. He said that colleagues had called him a “salad dodger”, “fat yoda” and “Gimli”. He also said that he had connections with the traveller community and he alleged that he had been called a “fat ginger pikey”.

The Law

Under section 26 of the Equality Act 2010 harassment occurs when:
A person (A) harasses another (B) if A engages in unwanted contact related to a relevant protected characteristic which has the purpose or effect of either:

  1. Violating B’s dignity
  2. Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

In deciding whether conduct should be regarded as having the effect referred to above, the tribunal will take into account:

  1. The perception of B
  2. The circumstances of the case
  3. Whether it was reasonable for the conduct to have that effect.

Decision

The Employment Tribunal dismissed the claims. It found that the office culture had been one where jibing and teasing was common and was considered normal. The Claimant himself “gave as good as he got”, calling a colleague a “fat paddy”. The Tribunal also noted that the Claimant had made no complaints about the comments until after he received his disciplinary letter.

The Employment Appeal Tribunal (“EAT”) dismissed the Claimant’s appeal. The EAT confirmed that it was necessary to consider the office culture of the Company and that the Tribunal had been entitled to find that the conduct complained of did not amount to harassment.

Comment

Harassment claims are fact sensitive and under different circumstances the comments referenced above could well have amounted to harassment. Employers need to ensure that employees are aware that even if they don’t intend to cause offence, for example with an insulting joke, it can still amount to harassment if an individual finds it offensive. Clear policies and training are strongly recommended to instil acceptable working environments and practice, and assist employers in defending harassment claims.

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