Employee was not harassed or discriminated against by office ‘teasing’, EAT rules

Sales rep was an ‘active participant’ in jibes with colleagues – but lawyers warn case does not excuse offensive ‘banter’

An employee who worked in an office where ‘jibing and teasing’ were commonplace did not suffer harassment, victimisation or discrimination when he was dismissed from his job, the Employment Appeal Tribunal (EAT) has ruled.

David Evans had claimed he suffered insults from colleagues because of his weight and his ethnic background.

But while the EAT admitted that in different contexts and circumstances the comments made about him could have constituted discrimination or harassment, it noted such claims are “highly fact sensitive and context specific”

Evans was employed by enterprise software company Xactly Corporation as a London-based sales representative from 4 January 2016 until his dismissal on 16 December 2016. He brought claims for a number of breaches of the Equality Act, covering harassment, victimisation, direct discrimination and disability discrimination. 

The tribunal heard that the “office culture was of jibing and teasing: a way of operating which appears not to be unusual for competitive salespeople working under stress to achieve their markets”. On occasion, Evans’ manager would “pull someone aside if he felt that their language had gone too far.”

However, Evans said a number of conversations were derogatory, and he referred to specific incidents as acts of harassment. 

The tribunal heard that on one occasion Evans was referred to as a “fat ginger pikey”, but only one colleague knew of his connections with the traveller community “and so those that had heard it considered it as a random comment”. 

Evans also said he had been referred to as “fat Yoda” (referencing a Star Wars character) and “Gimli” (a Lord of the Rings character).

In order to “properly understand the harassment claims”, the ET analysed the office culture, the context of the allegations, the behaviour relied on as acts of harassment and the nature of the relationships between Evans and the makers of the comments. 

The tribunal accepted that on the “face of it” the “pikey” comment was derogatory, demeaning and a “potentially discriminatory and harassing comment to make”. 

But the ET found Evans had been “an active participant in inappropriate comments” and was “seemingly comfortable with the office culture and environment”. 

Court documents also showed Evans relied on two impairments in support of his contention that he was disabled. 

His former employer accepted he was disabled by reason of his type 1 diabetes but did not accept there was any link between his health conditions and his weight. It also said there was no medical evidence to support his second impairment.

The ET found Evans’ colleagues knew “from early on in his employment” he was diabetic, but it was not seen as an issue. The court heard Evans did not allege any specific negative comments about his disability itself. 

Judge Hodgson concluded the reason for Evans being disciplined and eventually dismissed was his performance, and said the decision was not in any way influenced by direct discrimination or victimisation. 

Evans appealed the ruling, but the EAT said the tribunal was entitled to its conclusion, given harassment claims are highly fact sensitive and context specific.

Croner associate director Paul Holcroft said the EAT’s decision may be “surprising” to some, but it confirmed the tribunal was “right to consider the context, workplace relationships and behaviour” of Evans and his associates when considering its judgment.

“This prevents employees from being able to actively participate in this type of behaviour and then later allege they were harassed by it, as this is unlikely to be a reasonable reaction,’ Holcroft said.

Stefan Martin, employment partner at Hogan Lovells, agreed the context in such claims is critical. 

“It does not necessarily mean other harassment cases will fail just because an employee has occasionally participated in 'banter',” Martin said. “There are other cases in which tribunals found conduct was unwanted, and harassment claims have succeeded, despite the complaining employee's participation in similar conduct."

And Shazia Khan, partner at Irwin Mitchell, said employers should put in place a rigorous dignity at work policy to prohibit discriminatory treatment.

“It’s important for employers to realise one person’s banter is harassing and intimidating to another, and they need to set boundaries,” Khan said.

She recommended organisations ensure managers have rigorous and regular training on possible harassing behaviours. She said it was important for this training to be disseminated to staff so they can learn what is acceptable in the workplace. 

Neither Evans nor Xactly Corporation could be reached for comment.