Offensive remarks in the workplace may not constitute harassment when the context is considered in the view of the Employment Appeal Tribunal (EAT).

The Employment Tribunal Appeal case Evans v Xactly Corporation, deemed ‘derogatory’ remarks were not harassment because they were normal within the workplace culture.

‘Fat Pikey Ginger’

On face value, making an offensive remark to a member of staff might seem to automatically equate to harassment, but what if the language used was part of a cultural norm within the workplace environment? In Evans v Xactly Corporation (UKEATPA/0128/18/LA), this was the argument made by an individual who brought a claim of harassment under section 26 of the Equality Act 2010 (EqA 2010) after being subjected to offensive and derogatory comments.

The facts of the case

The Claimant brought proceedings against his former employer after being dismissed from his role as a sales representative. The case was centred around several breaches of the EqA 2010 relating to race and disability, whereby the Claimant was called a ‘fat ginger pikey’, a ‘salad dodger’, ‘fat Yoda’ and ‘gimli’. The Claimant argued that because he was associated with the travelling community, the references made were grounds for a race complaint. Also, his Type 1 diabetes was reasoned to mean the Claimant was disabled.

Section 26 of the Equality Act 2010

The Equality Act 2010 s26 deems that a person has been harassed if there is evidence of ‘unwanted conduct related to a relevant protected characteristic’ which has the effect of violating their dignity or ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’. The protected characteristics being age, disability, gender reassignment, race, religion or belief, sex, or sexual orientation.

The outcome of the case

The Court’s decision clearly illustrates that an injunction to prevent unfair competition can be sought and granted provided it is proportionate. Employee leaks of confidential information is a pressing concern of every company, especially those whose business models are based on valuable intellectual property, such as tech start-ups.

The Employment Appeal Tribunal (EAT) stated:

  • The comment ‘fat ginger pikey’ was a “derogatory, demeaning, unpleasant and a potentially discriminatory and harassing comment to make”.
  • It was important to consider the overall relationship and behaviour of those concerns as a context for the comments made and whether they constituted harassment.
  • Taking into account the context, it was concluded the comments did not constitute harassment because the Claimant “was such an active participant of the culture of banter”, and the remarks were not intended to violate the man’s dignity or create an intimidating work environment.

This decision highlights that the Courts are prepared to consider the culture, relationships, and overall context of comments which at face value would normally be classified as harassment. For employers, the fact the Courts have acknowledged the culture within the workplace plays a part in determining how people speak to one another, may provide a valid defence when facing a claim of harassment.

Whilst it’s clearly a risky defence to rely on, this is a helpful case for some employers faced with claims originating in a ‘banter culture’. Each case will turn on its facts and evidence of active and enthusiastic participation by the claimant is likely to be key.

If you have any queries on any matters raised in this article, please do get in touch.