UK: EAT Approves Use Of Indiscriminatingly Inappropriate Banter? Not Really (UK)

Last Updated: 20 November 2018
Article by Christopher Kelly

If I told you that calling a colleague with links to the Traveller community a "fat ginger pikey" might not be harassment, you would be forgiven for picking up the phone to the Solicitors' Regulation Authority. That is, however, one of the points we can take away from the EAT's decision in Evans v Xactly Corporation Limited, and it is difficult to fault the legal reasoning.

Mr Evans was employed as a sales representative by Xactly, a global software company. He was dismissed after 11 months on performance grounds and brought proceedings for harassment, victimisation and disability discrimination, all of which failed. Of particular interest are the harassment claims. The specific incidents he relied upon were being called said "fat ginger pikey", "salad-dodger", "fat Yoda" and "Gimli" (the latter being the dwarf from Lord of the Rings, so I'm told) during the course of his employment.

Evans claimed that references to his weight amounted to disability-related harassment (he has type 1 diabetes, which, he claimed, caused his weight to increase). The "pikey" reference was apparently race-related, given Evans' close links with the travelling community (both Romany Gypsies and Irish Travellers are protected as ethnic groups under the Equality Act). The comments were unwarranted, he said, and had caused him distress.

A slam-dunk claim, right? Not quite.

Before explaining why, it is worth reminding ourselves of the statutory definition of "harassment". A person harasses another if they engage in "unwanted conduct related to a relevant protected characteristic", which has the purpose or effect of violating the receiver's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The "or effect" wording means that there is no requirement for the upset to be deliberate.

As with any harassment claim, context is key. When the Tribunal scratched the surface, it found that the office culture at Xactly was "of jibing and teasing; a way of operating which appears not to be unusual for competitive sales people working under stress to achieve their targets". The Tribunal also found that Evans actively participated in the banter culture and was comfortable with it (he used offensive language such as the "C-word" and called a colleague a "fat paddy" on a regular basis). The environment in which Evans worked was, as the Tribunal eloquently put it "indiscriminatingly inappropriate" and no one either respected or focussed on protected characteristics.

Further, the "fat ginger pikey" comment was made by one of Evans' closest colleagues, with whom he socialised outside work both before and after the comment was made. Evans did not react at the time and the Tribunal concluded with some alacrity that he was of strong enough character to have done so had he been offended.

It followed then that the comments 1) were not "unwanted" (Evans was an enthusiastic and prolific participant in the banter culture); 2) did not have the purpose of violating Evans' dignity or creating an intimidating etc. environment for him, nor 3) did they actually have such an effect as Evans was not offended.

Indeed, the Tribunal and EAT were unwilling to accept that the above comments were even relevant to a protected characteristic. At the time, only one person at Xactly knew of Evans' connection with the Traveller community, and he was not the person who made the "pikey" comment. All things considered, the Tribunal was entitled to conclude that the comment was not related to Evans' community connections, but was instead just another random (albeit unpleasant) comment of the sort sprayed around by Evans and his colleagues on a daily basis. On the disability side, Evans had not provided any evidence of a relationship between his bodyweight, which the ET found to be "unremarkable" (a legal way of saying "you're not actually fat, just big-boned") and his disability. He had produced a letter from a GP which referred to the possibility of a link between weight gain and diabetes, but it did not establish one in his case. Not being medical experts, the Tribunal was not in a position to make a leap of faith and conclude that the Claimant's unremarkable weight was a manifestation of his disability.

The Tribunal therefore concluded that there has been no harassment at law, and the EAT dismissed Evans' appeal. In doing so, it was at pains to stress that "fat ginger pikey" was unpleasant and was a potentially discriminatory and harassing comment; it just wasn't in this case.

Lessons for employers

  • Any employers tempted to rely on this case in support of an "it's just office banter" defence should think again. A culture where comments of the type described above are bandied around will inevitably cause genuine offence and lead to successful claims at some stage. While the Tribunal and EAT accepted in this case that the Claimant actively participated in the office culture and did not find the comments offensive, it should be borne in mind that Tribunals are quite willing to accept that there are many situations where employees will outwardly put up with conduct that genuinely distresses them because they are constrained by social circumstances (genuine fear of reprisal etc.).
  • Bear in mind also that engaging in a bit of banter is not licence to other employees to say anything they want. Joining in such chat at a relatively trivial or mild level does not mean that you either welcomed or were not upset by comments on a similar theme but of a much more graphic or offensive level.
  • And note that part of the ET's reasoning related to who had made the remark to Evans, i.e. a close colleague in a jovial manner. The same words said by a manager in the context of a contentious disciplinary carpeting could justifiably be claimed to have had a very different impact.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions