In Evans v Xactly Corporation Limited, the EAT confirmed that Employment Tribunals should analyse an employer's office culture when considering potentially harassing comments.
The EAT stressed that such claims are highly fact sensitive and context specific; in other words, while calling a co-worker "a fat ginger pikey" did not constitute harassment in this case, it certainly may do so in another.
Discrimination, in its various forms, together with harassment and victimisation are all enshrined in the Equality Act 2010 (EqA). The EqA seeks to prevent individuals from being discriminated against at work, to avoid them being treat less favourably because they possess any (or a combination) of the protected characteristics listed in section 4 of the EqA (PCs).
Some of those PCs, namely: age; disability; gender reassignment; race; religion or belief; sex; and sexual orientation also apply to specific protection from harassment provisions. In cases where the harassing conduct is not of a sexual nature, an individual must show that they have been subjected to unwanted conduct relating to those PCs and that the unwanted conduct had the purpose or effect of violating the victim's dignity; or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to them (s. 26, EqA).
The Claimant was employed by the Respondent, Xactly Corporation Limited (XCL) as a Sales Representative from 4 January 2016 to 16 December 2016. He suffered from type 1 diabetes and hyperthyroidism and believed that these conditions led to him being overweight. He also had ties to the travelling community. One of the Claimant's colleagues, Noel Paton (NP), who was also a close personal friend, knew that the Claimant had close links with the traveller community. However, this was not common knowledge at XCL. However, in February 2016, the Claimant had asked XCL's Managing Director, Tom Castley (TC), for time off to go to the funeral of a close traveller friend
The Claimant was given a considerable "bedding in" period and was not expected to reach his sales target for a few months as he was a new starter. However, the entire sales team failed to hit their targets and a number of sales staff were dismissed throughout the year. The Claimant failed to sell anything by December and was disciplined and later dismissed by XCL for poor performance.
The Claimant then brought a number of claims including discrimination, victimisation and harassment on grounds of disability and/or race citing occasions when he was called: "salad dodger", "fat yoda", "gimli" and "fat ginger pikey" by colleagues. He also alleged that he was disciplined and dismissed for raising this as an issue.
Employment Tribunal decision
The Tribunal carefully considered the evidence of ten different witnesses making a number of findings of fact over what exactly happened throughout the course of the Claimant's employment.
In doing so, the Tribunal determined that the office culture at XCL was one where jibing and teasing one another was common. The Claimant and NP would often use extremely foul language, for example, the Claimant often referred to NP as a "fat paddy". In general, this behaviour was accepted and was treated as normal friendly behaviour at XCL. The Claimant had never raised a complaint about the day-to-day goings on in the office. However, he had been reprimanded by TC for trying to hug and cuddle a co-worker and calling her a "pudding".
Firstly, it established that although the Claimant was considered to be disabled through his type 1 diabetes, he failed to provide any evidence that this and/or his hypothyroidism had a real and measurable impact on his weight. Therefore, any claims that sought to rely on him being called "fat" in some way or another were not arising from his disability and failed. The decision to discipline him was not unusual given his poor record and was similar to the treatment of other poor performing colleagues.
When considering the harassment element of the comments in question, the Tribunal confirmed that they needed to be taken in context and that the Claimant could not argue that he was particularly sensitive to the use of such terms when he himself called NP a "fat paddy" and another female colleague a "pudding". Likewise, the Tribunal struggled to see how the comments could have been particularly offensive given that none of XCL's witnesses thought that the Claimant was actually fat.
Secondly, the race discrimination claim failed as the Claimant did not advance any argument that could have led the Tribunal to conclude that the reason he was disciplined and dismissed was due to his links with the travelling community. Only NP knew that the Claimant had links to the travelling community and, therefore, any comments were not made with this knowledge in mind.
The Tribunal considered the "fat ginger pikey" comment in greater detail. It established that the comment had been made in April 2016 by Kevin Henderson (KH), one of DE's colleagues on the sales team. During the hearing, KH confirmed that he did not know of DE's ties to the travelling community and the comment was not intended to upset DE. The Tribunal also considered that whilst the Claimant had links to the travelling community, the comment was not personal to him as he was not a traveller himself. Further, it was a one-off comment which was not out of place at XCL. It was also relevant that the Claimant "gave as good as he got" at work and he had not complained about the comment at the time. The Tribunal attached significant weight to the fact that he only reported the comment in November 2016, after he received his disciplinary letter and determined this was a tactical decision to head off the disciplinary or negotiate an exit.
The Claimant appealed the decision challenging the Tribunal's findings of fact that he was not disabled and that they had not properly contemplated the effect his claims had on him.
The EAT confirmed it was necessary to consider the office culture at XCL to understand the allegations and the context in which they were made. It dismissed the appeal, affirming that the Tribunal was best placed to make findings of fact about the context of the allegations and office culture. The EAT went on to confirm that the Tribunal had looked into this case in great detail, justified its findings and did not fail to take anything into account it should have (and nor did it take anything into account that it should not have done).
The Tribunal was entitled to reach the conclusions it did on the evidence it heard and that the acts complained of did not satisfy the relevant tests in the EqA.
The relationships of employees and the link with any PCs relied upon have an important role to play in EqA claims. Whether such comments amount to harassment will depend on: (i) an individual's perception; (ii) the circumstances of the case; and (iii) whether it is reasonable for the conduct to have that effect.
This decision reminds us that when considering allegations of harassment Tribunals will assess behaviour and comments in light of the overall relationship between the parties and their various employees before concluding whether such behaviour and/or comments amount to harassment. Comments are unlikely to amount to harassment when things are said or done which are trivial, particularly where it is clear that no offence is intended and where the victim participates in similar behaviour towards others.