Mr Evans worked as a sales representative for a period of just less than a year before he was dismissed for poor performance. After his dismissal he brought a number of claims including discrimination on the grounds of disability, victimisation and harassment. The predominant insult cited during the proceedings was that Mr Evans was called ‘a fat ginger pikey’ and this was offensive to him as a man with links to the traveller community. He also said he was sensitive about his weight, because his diabetes and an allegedly under-active thyroid caused him issues with gaining weight. He was also referred to as a ‘salad-dodger’, ‘fat yoda’, ‘Gimli’ (who, for my readers who are not fans of Tolkien, is a rather rotund dwarf from Lord of the Rings), and a ‘jellied-eel salesman’.
At the Tribunal, the insults were considered. Without context, it is easily understandable that the comment could be potentially discriminatory and one which could harass a colleague. However, they considered the context behind the remarks. Firstly, they looked at the culture of the office. The sales team’s nature was one of ‘jibing and teasing’ and was common place amongst competitive sales people working in a stressful environment. Mr Evans joined in with this jibing and was noted to call another colleague a ‘fat paddy’. Because of this the Tribunal felt that the conversations in the team were indiscriminately inappropriate and that no one in the team was focussing on a protected characteristic.
It should also be noted that only one member of the team, a friend of Mr Evans, knew of his links to the traveller community and none of his former colleagues considered Mr Evans fat. On this basis, the court struggled to see how the comments could have been particularly offensive to Mr Evans. This appeared to be the case because at no point did he raise any formal complaints about the comments made until after his dismissal. In fact, it appeared that the comments only became raised as a bargaining chip for Mr Evans, who sought to settle the matter out of court for a sum of just less than £80,000.
As a result, the Tribunal found that no harassment had taken place. As the manager from Xactly stated, it was attributed to just office banter and nothing more. The EAT agreed with this conclusion.
What does this mean for you or your business, and what should you be doing now?
It is worth noting that harassment claims are highly fact sensitive and each decision relates to a specific context. Many claims will not turn out as well for an employer as this one did.
In this situation, the fact that the Claimant sought to rely on comments which he had engaged with and didn’t raise complaints about until after his dismissal led to the finding. Be aware however that harassment can be found even if comments were not directed at the affected person. As a result, you should ensure that clear boundaries should be set in the workplace as to what is appropriate and what is not.
Having clear policies in place which are communicated to employees should ensure that ‘office banter’ does not stray into offensive territory. In situations where comments do affect employees, take the allegations seriously and utilise bullying or grievance policies to discuss and remedy the situation, so that you don’t have to deal with the matter escalating to a Tribunal.
The full judgment from the EAT can be read HERE.