How far can a culture of 'office banter' get an employer out of hot water?

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How far can a culture of 'office banter' get an employer out of hot water?

How far can a culture of 'office banter' get an employer out of hot water?

"The recent case of Evans v Xactly Corporation Limited shows that when determining what amounts to harassment under the Equality Act 2010, it is important to look at context and whether the complainant's reactions to unwanted conduct are reasonable".

The facts

Mr Evans was employed by Xactly Corporation Limited ("XCL") as a sales representative from 4 January 2016 until his dismissal on 16 December 2016.

Mr Evans had ties to the travelling community and it was accepted that a close colleague of Mr Evans knew of this link, however it was not common knowledge within XCL.

As a new starter Mr Evans was given a generous settling in period. He was not expected to hit target straightaway as it was recognised that it would take a while for him to build his sales "pipeline". However, despite undergoing a performance improvement plan, Mr Evans failed to make any sales. This combined with a retaliatory grievance and settlement discussions led to Mr Evans being dismissed due to a breakdown in the working relationship.

Following his dismissal, Mr Evans brought a number of claims against XCL under the Equality Act 2010, including discrimination and harassment on the grounds of disability and/or race. Focussing particularly on the harassment allegations, he alleged that being called a "salad dodger", "fat Yoda" and "fat ginger pikey" by his colleagues amounted to harassment on the basis of his disability and/or race. Mr Evans alleged that he was disabled due to having type 1 diabetes (which was admitted by XCL) and hyperthyroidism (which was denied by XCL).

Mr Evans alleged that he raised complaints against such treatment and was dismissed as a result.

Employment Tribunal

In coming to its judgment, the Employment tribunal made a number of findings of fact in relation to Mr Evans' employment, particularly on the office culture that existed within XCL.

The Tribunal noted that the office culture was one of "jibing and teasing", a culture which the Mr Evans also participated in. In particular, the Claimant referred to colleagues as "pudding" or a "fat paddy" and was reprimanded on one occasion. The Tribunal concluded that the culture within XCL was "indiscriminatingly inappropriate and that nobody was either respecting or focussing on protected characteristics".

Harassment on the basis of race

The Tribunal, in determining whether Mr Evans suffered from harassment, particularly focused on the phrase "fat ginger pikey" which was accepted was said to Mr Evans by a colleague.

Whilst the Tribunal found such a phrase could amount to harassment, it considered that in light of the context in which it was said it did not in this instance. The Tribunal found that Mr Evans always gave as good as he got which made it unlikely that he would be offended by anything which others might consider acceptable. It was also clear from the evidence that Mr Evans was not upset at the time the comment was made. The Tribunal found that given Mr Evans' character, he would have reacted at the time if he had been upset, let alone that his dignity was undermined or that a hostile environment was created. The Tribunal found, importantly, that Mr Evans only made a recognisable complaint about this comment, some 7 months after it was made, following receipt of his performance improvement plan. The Tribunal considered that this was a tactical move to gain a negotiated exit package rather than being genuinely upset about what was said.

Harassment due to disability

In respect of the other comments, Mr Evans alleged this amounted to harassment on the basis of his diabetes and/ or hyperthyroidism as he alleged these two conditions caused him to gain weight. From an evidential perspective, the Tribunal found no causal link between Mr Evans disability and weight gain. In any event, the Tribunal considered that Mr Evans could not be particularly sensitive to the use of the term “fat”, “yoda”, “salad dodger”, “gimli” when he himself called colleagues a “fat paddy” or a “pudding”.

The Tribunal therefore found against Mr Evans in respect of his harassment complaints, and against Mr Evans in respect of the other complaints.

Mr Evans appealed against the Tribunal's decision, mainly challenging the Tribunals findings of fact and the Tribunal's determination that there was no causal link between his disability and weight gain.

Employment Appeal Tribunal

In looking into Mr Evans' appeal, the EAT considered that in his case, when considering the harassment allegation, it was necessary for the Tribunal to analyse the context of the allegations, the office culture of XCL and the nature of the relationships between Mr Evans and his colleagues. In doing so, the EAT found that the Tribunal was entitled to conclude that in all the circumstances the comments Mr Evans had received did not constitute harassment.

The EAT analysed the Tribunal's judgment and found that the effect of this when looking at the statutory definition of harassment was that:

"(1) the comments were not unwanted since the Claimant was such an active participant of the culture of banter (for want of a better word for it);
(2) they did not have the purpose of violating the Claimant’s dignity or creating an intimidating etc environment for him;
(3) nor did they have the effect of violating the Claimant’s dignity or creating an intimidating etc environment for him, as he was not offended;
(4) in any event it would not have been reasonable for him to have considered his dignity was violated or the environment was hostile etc given the particular circumstances and all the context and material facts relevant to the claim"

The EAT did note that whilst in the first instance it is surprising that calling someone a "fat ginger pikey" where someone has links to the traveller community did not amount to harassment, the Tribunal was entitled to make this conclusion when considering the context and office culture within XCL. The EAT stated harassment claims are "context specific" and noted that in other contexts and circumstances, such a statement could amount to harassment.

The EAT found that the Tribunal was entitled to make the findings that it did and dismissed Mr Evans' appeal.

How much can an employer rely on "office banter" as a defence in harassment cases?

The main takeaway is that this case is very fact specific. Employers cannot rely on this case in order to use a culture of "office banter" as a blanket defence. What this case does illustrate, however, is that context is key when it comes to harassment claims.

As set out in the Equality Act 2010, when considering whether conduct shall be regarded as having the effect of violating somebody's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, consideration also needs to be given as to whether the effect alleged is reasonable to infer taking all circumstances into account.

What helped XCL in this case was that Mr Evans actively engaged in such an "indiscriminatingly inappropriate" office environment and was evidently not upset or offended at the time by the comments that were made. Therefore in the Tribunal's view, it was not reasonable for Mr Evans to consider that he had been harassed on the basis of race and/or his disability.

However, a Tribunal could very easily have found against XCL if there was even a slight difference in circumstances, for instance the employee may not raise any complaints that they felt genuinely harassed about due to fear of reprisals. Having an office environment like the one at XCL will lead to a higher risk of potential claims as having an environment where such arguably inappropriate behaviour is tolerated is more likely to cause offence to someone, whether intended or not. Indeed, the EAT acknowledges that the Tribunal's decision on the face of it was very surprising.

What this case does do is help those employers try to fend off claims where arguably such complaints were only raised to seek to get compensation, rather than for those who were genuinely upset or offended by such behaviour.

Rather than seeking to rely on "office banter" as a defence, employers would have a better chance of successfully defending claims of harassment if it can show that they actively engage in equality and diversity awareness training and up-to-date policies, making clear what behaviour and conduct is acceptable and not acceptable. In addition, by having an effective internal grievance procedure and/or invoking disciplinary action where complaints are upheld, may assist in preventing legal action in the first place or show to a Tribunal that took all reasonable steps to try and prevent such behaviour.

For more information on defending claims against harassment, please contact Priya Magar, or you can give us a call on 0345 070 6000.