It was just office banter…..

Case review: Evans v Xactly Corporation Ltd UKEAT/0128/18

In this case the Tribunal held that background context is key, and a culture of “banter” can, in the right circumstances, help to explain potentially discriminatory conduct and protect an employer from a discrimination claim.

In this case a sales manager was dismissed for poor performance.  The Claimant who suffered Type 1 Diabetes brought a claim for discrimination.  He asserted that  during his employment he was called a “salad dodger”, “fat Yoda”, “Gimli”, and “fat ginger pikey” by his colleagues. He alleged that he was disciplined and eventually dismissed for raising such treatment as an issue.

The Tribunal dealt simply with the claims for discrimination, as while the Claimant was indeed disabled as a result of his type 1 diabetes, he had failed to adduce evidence that this and/or his hyperthyroidism had a real impact on his weight. Therefore, any claims which sought to rely on insulting comments made about his weight could not arise from or be connected to his disability and failed.

This left the Claimant’s allegations of race-related harassment as his only potential claim.  In order to succeed, an individual must show that they have been subjected to unwanted conduct relating to a protected characteristic, 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.

In considering this test, the tribunal first determined that the respondent’s office culture was one where teasing and banter was common. Indeed, the claimant himself would often reply in kind, referring to a close colleague as a “fat paddy” and a female colleague as a “pudding”. This behaviour appeared to be accepted and treated as normal within the office.  One might say that the parties involved were indiscriminatingly inappropriate.

The Employment Appeals Tribunal ultimately held that the Tribunal (of First Instance) was correct in its finding.  A banterful work environment was therefore relevant, stating:
·         The comments were not unwanted since the claimant was such an active participant in the culture of banter.
·         They did not have the purpose of violating the Claimant’s dignity or creating an intimidating environment for him.
·         Nor did they have the effect of violating the Claimant’s dignity or creating an intimidating environment for him, as he was not offended.
·         In any event it would not have been reasonable for him to have considered his dignity was violated or the environment was intimidating given the particular circumstances and all the context and material facts relevant to the claim.

Posted on 5 February, 2019 by Ortolan

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