Is this harassment or not?

21 November 2018

Evans v Xactly looks at the harassment of an employee.

Is it harassment to call an employee a 'fat ginger pikey'? Not in Evans v Xactly the Employment Appeal Tribunal has said. The employee was a sales executive with type 1 diabetes and strong links to the traveller community. He was dismissed for poor performance. He brought numerous claims under the Equality Act 2010, including ones for harassment linked to disability (regarding 'fat' comments which he linked to his diabetes) and race (for the 'pikey' comment which he attributed to his traveller community links).

The employment tribunal found that there was a culture of banter among the sales team. Certain comments could be deemed highly offensive in some workplaces, but the culture was different at Xactly. The employee was actively involved in the banter and was comfortable with the office culture and environment. The tribunal also found that Mr Evans had not complained at the time of the comment. They said he would have done if he had felt offended. The tribunal found there had been no harassment.

The Employment Appeal Tribunal agreed. The employment tribunal had gone through the facts in detail and clearly explained its reasoning. The context was key. The comments were not unwanted because the employee was actively involved in the culture of banter between colleagues. The comment did not have the purpose of creating an intimidating or hostile environment because it was light hearted reciprocal banter. Nor had it created an intimidating environment because the facts showed that the employee was not offended. It was not reasonable for him to feel that his dignity had been violated.

Even the EAT Judge in this case said it was surprising for the comment to escape a finding of harassment. However, such cases turn on their individual facts. Employers would be wise to address any inappropriate banter, however reciprocal it may appear.


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