A person harasses someone if he or she engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either (i) violating the other person’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
In deciding whether conduct has the effect referred to above, the following is taken into account:
- The perception of the claimant.
- The other circumstances of the case.
- Whether it is reasonable for the conduct to have that effect.
In this short update, we address a case (Evans v Xactly Corporation Limited) that demonstrates how what constitutes harassment might not be quite as obvious as some employers, and employees, think.
Mr Evans was employed as a sales representative. Before the first anniversary of his employment, he was dismissed for poor performance. Other colleagues had been dismissed for poor performance prior to his dismissal.
Mr Evans brought a number of claims, which were rejected by the employment tribunal. One of his claims was for harassment. In particular, he alleged that he had been called a “fat ginger pikey” on at least one occasion. He was diabetic and sensitive about his weight, and had close links with the traveller community. However, only one colleague knew about his links to the traveller community and no-one considered him to be fat. The word “fat” was used in his workplace as a general insult, whether the recipient of the insult was fat or not.
Whilst the tribunal accepted that the comment was potentially discriminatory and could constitute harassment, it considered the context in which the comment was made. In particular, it considered the nature of the relationships between Mr Evans and his colleagues.
The tribunal found that the culture in the office was of “jibing and teasing” amongst sales colleagues competing with each other. Mr Evans had been an active participant in inappropriate comments and behaviour in his workplace, to the extent that managers had taken him to one side to discuss his behaviour. The tribunal also noted that, at the time the particular comment was made, Mr Evans had not reacted or complained.
Employment Appeal Tribunal (EAT) Decision
The EAT considered that the employment tribunal was entitled to reach the conclusion which it did, and was best placed to make findings of fact about the relevant context and office culture – something that was needed to understand the claimant’s allegations.
As the EAT noted, harassment claims are “highly fact sensitive and context specific”. Both the employment tribunal and the EAT considered, in detail, the overall relationship between, and behaviour of, Mr Evans and his colleagues. Context was all-important.
Where an employee, like Mr Evans, is an active participant in workplace banter, it may be harder for him or her to demonstrate that they have been harassed for the purpose of succeeding with a claim under the Equality Act 2010. However, employers should not be complacent. Workplace cultures vary hugely, as does the tolerance of employees to such cultures. When an employee complains of harassment, employers should react promptly and treat any complaints seriously in accordance with any applicable internal policies or procedures.
For the purposes of the Equality Act 2010, anything done by an employee in the course of his or her employment is treated as also having been done by the employer. The employer can, therefore, be liable for alleged harassment by its employees, whether or not the harassment is done with the employer's knowledge or approval. However, if an employer can show that it took "all reasonable steps" to prevent the employee from doing the discriminatory act, it may have a successful defence.