Banter or harassment?

Morrish SolicitorsEmployment, Site News

Section 26 of the Equality Act 2010 states that a person (A), harasses another (B), if A engages in unwanted conduct related to a relevant protected characteristic (e.g. sex or race), and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. In deciding whether the conduct has this effect, you must take account the perception of B, the other circumstances of the case, and whether it is reasonable for the conduct to have that effect.

The question for the EAT in the recent case of Evans v Xactly was if calling someone a “Fat Ginger Pikey” amounted to harassment, as defined above.

The Claimant, Mr E, was dismissed for performance related issues, with less than one year’s service. He issued a number of claims, one of which was a claim for harassment, for being called a “fat ginger pikey” on at least one occasion. Mr E was diabetic and sensitive about his weight – although his colleagues did not consider him fat. In addition, he had strong links with the Traveller community.

The ET considered the context in which the comment was made. The ET found that the office culture involved jibing and teasing – not uncommon amongst competitive sales people – and that Mr E actively participated in such “banter”. Further, Mr E had not complained of the comment until 7 months after it was made.

The ET held the treatment did not meet the test of harassment as defined in Section 26 of the Equality Act 2010. The EAT agreed.

Of importance in this decision, was the fact that Mr E was actively involved in the banter and as such it could not amount to “unwanted conduct”.  One example mentioned was the fact that he used to attempt to “hug and cuddle” a female colleague and call her “pudding”. This female colleague had complained about this and when management raised it with the Claimant he said this colleague was “rather spikey”.

Had the Claimant not partaken in the banter then it is likely the ET may have considered that the comment amounted to harassment. It seems there could also be circumstances in which the Claimant may have partially partaken in banter and still have been subjected to harassment by the comment. Consider for instance, the scenario where a junior employee who is new to the company might think that certain “banter” amounts to unwanted conduct but does not have the courage to speak out about it, and maybe even joins in to a degree to try to fit in.

The EAT stressed in their judgment that whilst there had been no harassment on these facts, “in other contexts and circumstances the comment might have amounted to harassment, but harassment claims are highly fact sensitive and context specific.” What we can take from this is that in claims for harassment, comments cannot be viewed simply at face value, and need to be considered amongst all the circumstances to determine if the conduct can in fact be considered to be unwanted.