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December 11, 2018

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EAT Approves Use of Indiscriminatingly Inappropriate Banter? Not Really

If I told you that calling a colleague with links to the Traveller community a “fat ginger pikey” might not be harassment, you would be forgiven for picking up the phone to the Solicitors’ Regulation Authority. That is, however, one of the points we can take away from the EAT’s decision in Evans v Xactly Corporation Limited, and it is difficult to fault the legal reasoning.

Mr Evans was employed as a sales representative by Xactly, a global software company. He was dismissed after 11 months on performance grounds and brought proceedings for harassment, victimisation and disability discrimination, all of which failed. Of particular interest are the harassment claims. The specific incidents he relied upon were being called said “fat ginger pikey”, “salad-dodger”, “fat Yoda” and “Gimli” (the latter being the dwarf from Lord of the Rings, so I’m told) during the course of his employment.

Evans claimed that references to his weight amounted to disability-related harassment (he has type 1 diabetes, which, he claimed, caused his weight to increase). The “pikey” reference was apparently race-related, given Evans’ close links with the travelling community (both Romany Gypsies and Irish Travellers are protected as ethnic groups under the Equality Act). The comments were unwarranted, he said, and had caused him distress.

A slam-dunk claim, right? Not quite.

Before explaining why, it is worth reminding ourselves of the statutory definition of “harassment”. A person harasses another if they engage in “unwanted conduct related to a relevant protected characteristic”, which has the purpose or effect of violating the receiver’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The “or effect” wording means that there is no requirement for the upset to be deliberate.

As with any harassment claim, context is key. When the Tribunal scratched the surface, it found that the office culture at Xactly was “of jibing and teasing; a way of operating which appears not to be unusual for competitive sales people working under stress to achieve their targets”. The Tribunal also found that Evans actively participated in the banter culture and was comfortable with it (he used offensive language such as the “C-word” and called a colleague a “fat paddy” on a regular basis). The environment in which Evans worked was, as the Tribunal eloquently put it “indiscriminatingly inappropriate” and no one either respected or focussed on protected characteristics.

Further, the “fat ginger pikey” comment was made by one of Evans’ closest colleagues, with whom he socialised outside work both before and after the comment was made. Evans did not react at the time and the Tribunal concluded with some alacrity that he was of strong enough character to have done so had he been offended.

It followed then that the comments 1) were not “unwanted” (Evans was an enthusiastic and prolific participant in the banter culture); 2) did not have the purpose of violating Evans’ dignity or creating an intimidating etc. environment for him, nor 3) did they actually have such an effect as Evans was not offended.

Indeed, the Tribunal and EAT were unwilling to accept that the above comments were even relevant to a protected characteristic. At the time, only one person at Xactly knew of Evans’ connection with the Traveller community, and he was not the person who made the “pikey” comment. All things considered, the Tribunal was entitled to conclude that the comment was not related to Evans’ community connections, but was instead just another random (albeit unpleasant) comment of the sort sprayed around by Evans and his colleagues on a daily basis. On the disability side, Evans had not provided any evidence of a relationship between his bodyweight, which the ET found to be “unremarkable” (a legal way of saying “you’re not actually fat, just big-boned”) and his disability. He had produced a letter from a GP which referred to the possibility of a link between weight gain and diabetes, but it did not establish one in his case. Not being medical experts, the Tribunal was not in a position to make a leap of faith and conclude that the Claimant’s unremarkable weight was a manifestation of his disability.

The Tribunal therefore concluded that there has been no harassment at law, and the EAT dismissed Evans’ appeal. In doing so, it was at pains to stress that “fat ginger pikey” was unpleasant and was a potentially discriminatory and harassing comment; it just wasn’t in this case.

Lessons for employers

  • Any employers tempted to rely on this case in support of an “it’s just office banter” defence should think again. A culture where comments of the type described above are bandied around will inevitably cause genuine offence and lead to successful claims at some stage. While the Tribunal and EAT accepted in this case that the Claimant actively participated in the office culture and did not find the comments offensive, it should be borne in mind that Tribunals are quite willing to accept that there are many situations where employees will outwardly put up with conduct that genuinely distresses them because they are constrained by social circumstances (genuine fear of reprisal etc.).

  • Bear in mind also that engaging in a bit of banter is not licence to other employees to say anything they want. Joining in such chat at a relatively trivial or mild level  does not mean that you either welcomed or were not upset by comments on a similar theme but of a much more graphic or offensive level.

  • And note that part of the ET’s reasoning  related to who had made the remark to Evans, i.e. a close colleague in a jovial manner.  The same words said by a manager in the context of a contentious disciplinary carpeting could justifiably be claimed to have had a very different impact.

© Copyright 2018 Squire Patton Boggs (US) LLP

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About this Author

Christopher Kelly, Squire PB, labor and employment lawyer
Associate

Chris is an associate based in our London office. He specialises in all areas of labour and employment law, advising UK-based and international businesses on contentious and non-contentious matters. Chris is often praised by clients for his ability to respond rapidly with clear and commercially sensitive advice.

Chris has also provided bespoke in-house training on conducting disciplinary investigations, handling grievances and responding to Tribunal litigation.

Chris is a member of the Employment Lawyers Association.

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