EAT rules that employee was not discriminated against or harassed by colleagues

David Evans made a claim that he had suffered insults from his colleagues due to his weight and ethnic background. He alleged that he was victimised and discriminated against in the office where jibing and teasing were part of the day.

Evans was employed by the company Xactly Corporation as a London based sales representative. He worked there from January 2016 until he was dismissed in December 2016. Evans made claims for several breaches of the Equality Act. His case covered victimisation, harassment, disability discrimination and direct discrimination.

The Tribunal heard that the office banter was a part of the day with jibing and teasing being commonplace. It was a way of coping with the stress of the job and was not unusual for sales people to work this way.

Occasionally Evans’ manager would take an employee aside to reprimand them if he felt that things were getting out of hand or bad language had gone too far.

The employment tribunal found that Evans had been a willing participant in the office banter from the day he started to work there and had been an active participant in making inappropriate comments. He had seemed comfortable in the office culture and environment.

It seems that Evans took umbrage against several colleagues when they made comments about his weight. It was known in the office that Evans suffered from Type 1 Diabetes and this was the cause for him being overweight. The ET heard that a colleague had called Evans a ‘fat, ginger pikey’. Evans also stated that he had been called ‘Fat Yoda’ and ‘Gimli’, both of which implied that he was overweight.

While the ET accepted that being called a ‘fat, ginger pikey’ was derogatory, demeaning and potentially discriminating, they felt that if such comments had offended Evans, he would have been within his rights to complain in the very early days of his employment.

The ET admitted that the comments were ‘highly fact sensitive and context specific’ and while they may have been construed as harassment out of the office, in the office they were in context with many other comments made by sales people.

To fully understand the harassment claims made by Evans, the ET looked closely at the office culture and the context of the allegations. They also took into account the allegations about his medical condition and accepted that he was Diabetic. However, there was no link between his health condition and his weight as there was no medical evidence to support this claim.

Evans’ colleagues were aware of his Diabetes from early on in his employment, but it was never seen as an issue and negative comments were not made about his disability.

Judge Hodgson accepted that the reason Evans was dismissed was entirely due to his bad performance figures. His dismissal was in no way influenced by direct discrimination or victimisation.

Evans appealed against the ruling but the EAT concluded that the tribunal was entitled to the conclusion they had formed, given the fact that the claims were fact sensitive and context specific. The tribunal was correct in their actions of considering the workplace relationships and behaviour.

The ruling prevents employees from being able to actively participate in a particular type of behaviour and later allege that they were harassed by it.

This does not mean that harassment cases will fail because a member of staff has occasionally participated in office banter as there have been cases where unwanted conduct and harassment cases have succeeded despite the employee participating in similar behaviour conduct.

Shazia Khan, partner at Irwin Mitchell stated that employers need to have in place a stringent ‘dignity at work’ policy which would prohibit discriminatory treatment. It is vitally important to know that one person’s banter is intimidating to another person. Boundaries need to be set.

She concluded that organisations needed to have rigorous and regular training for managers on possible harassing behaviours. This training should be passed on to staff so that they learnt what is acceptable and what is not.

Because Evans had willingly participated in the office banter, and then at a later stage claimed that the same banter was now harassment and discriminatory, the employment tribunal found that his dismissal was legal, and the company was within its rights to dismiss him.

Neither Xactly Corporation nor Evans was available to comment.


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