When Xactly does banter amount to harassment in the workplace?
In a recent case, Evans v Xactly, the phrase “Fat Ginger Pikey” did not amount to harassment. The Tribunal did, however, make some interesting comments about when ‘banter’ becomes harassment.
What happened in Tribunal?
Mr Evans was a sales representative for a global software company. He was employed for just under a year when he was dismissed for ‘poor performance’. He subsequently brought a number of claims at the Employment Tribunal, one of which was a claim for harassment as a result of being called a “fat ginger pikey”.
Mr Evans was a diabetic and was self-conscious about his weight. He also had links to the traveller community. As a result, the tribunal stated that, on the face of it, the comment could be discriminatory and amount to harassment.
However, in the context of the case, it decided it was not.
The judge made it clear that the fact that Mr Evans had not complained about this comment until over seven months after it was made, and his own use of offensive language in the office, contributed to this decision. The tribunal found that Mr Evans actively participated in a culture of ‘office banter’, and that he hadn’t found the comment inappropriate or unwelcome at the time it was made.
Measuring the banter?
The effect of harassment is considered subjectively, from the view of the person bringing a claim (assuming that, in a tribunal’s opinion, their view is reasonable). It is largely irrelevant what the intention of the person making the comment was, or what other people thought of the comment. And, a court can still find that someone has indeed been harassed, even if the offending comment wasn’t directed at them.
In Keenan v Benugo, for example, the partner of a gay employee was asked whether he had come to visit his “husband or wife or whatever he is”. The evidence of another gay employee, who said that he wouldn’t have found this comment offensive, was irrelevant – and the claimant won his case.
Harassment claims are highly context specific and fact sensitive. Although in the Evans v Xactly case Mr Evans was found not to have been harassed, banter can undoubtedly be dangerous for employers.
It’s important that employers make sure they’re aware of the potential risks of office banter and take steps to limit them by having clear policies in place, communicating these policies to employees, and taking allegations of bullying and harassment seriously.
If you would like to discuss how to protect your business from claims of harassment, please don’t hesitate to get in touch with a member of our Employment Team.