In the case of Evans v Xactly, the Claimant was employed by the Respondent as a sales representative for just short of one year when he was dismissed. He brought a series of claims to include discrimination, victimisation on the grounds of disability and race and harassment.
The Tribunal rejected these claims and found that the Respondent’s reason for dismissal (poor performance) was genuine.
The Claimant had also brought a claim for harassment on the basis that he had been called a “fat ginger pikey” amongst other names. The Claimant was diabetic and sensitive about his weight and had strong links to the traveller community. Whilst the Tribunal concluded the comments were potentially discriminatory and could amount to harassment, they considered the context in which the comments were made, the office environment and the nature of the relationships between work colleagues. The Claimant had not complained at the time the remarks were made, did not appear to be upset by them and it was found that he had reciprocated by making derogatory comments to colleagues. In addition the Claimant was unable to demonstrate a link between the comment, his medical condition and only one of his colleagues knew of his links to the travelling community. The tribunal therefore concluded that the treatment did not meet the harassment definition in s26 of the Equality Act 2010.
The Claimant appealed the decision to the Employment Appeal Tribunal but they agreed that the Tribunal was entitled to come to this conclusion, given that harassment claims are highly fact sensitive and context specific.
This case provides a useful reminder that the context in which alleged acts of harassment take place is key. When considering whether a derogatory comment amounts to harassment under section 26 of the Equality Act 2010, the context in which the comment was made and the nature of the relationship between the claimant and the maker of the comment should all be taken into consideration. This decision does not suggest that employers can avoid liability for the conduct of and statements made by nor rely on accepted office culture as justification for potentially discriminatory or harassing comments. Such an approach could give rise to claims from those in the workplace who are not active participants in ‘banter’ and who feel that they have been harassed at work as a result of the environment created by others. Employers would be better served by actively managing the behaviour of staff who do not act in a professional manner in the workplace.