Harassment at work often leads to employment tribunal (ET) claims for discrimination. The employee must show that an individual suffered:
(1) unwanted conduct (that is related to a protected characteristic (i.e. age, disability, gender reassignment, race, religion or belief, sex and sexual orientation);
(2) that has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This is quite broad and covers any untoward behaviour.
We look at a recent case which clarifies that a successful case for harassment at work depends on the specific facts.
Mr Evans started working for Xactly Corporation as a sales rep from 4 January 2016. He was called a ‘fat ginger pikey’ at least once during his employment. Mr Evans had strong links to the traveller community, was diabetic and sensitive about his weight. Xactly Corporation decided to dismiss Mr Evans for poor performance.
Mr Evans then brought a claim for harassment against Xactly in relation to the ‘fat ginger pikey’ comment, on the grounds of disability and race. He said that ‘fat’ related to his disability and ‘pikey’ related to his ethnic origin. The ET found that whilst in theory the comment was potentially a discriminatory and harassing comment, it wasn’t harassment. The comments:
- weren’t ‘unwanted’ (because Mr Evans actively participated in the office banter);
- they didn’t have the purpose of violating Mr Evan’s dignity, or creating an intimidating environment;
- and they didn’t have that effect (because he wasn’t offended).
Mr Evans appealed to the employment appeal tribunal (EAT). The EAT ruled that the tribunal was entitled to come to this conclusion because harassment claims are highly fact-sensitive and context-specific.
This case reminds us that although an employee who puts up with harassment at work for years and even joins in with it doesn’t necessarily find it unwanted. Their reaction to such conduct will be taken into account (including their level of participation, or the extent to which they appeared to get offended). This can be critical in establishing whether or not harassment has taken place.
Before an employee brings a harassment claim, it is helpful to keep a diary, register displeasure (eg with a grievance) and get colleagues on board to support their account.
Case report: Evans v Xactly.
By Hatton James Legal
Image used under CC courtesy of Gabe Austin