In many workplaces up and down the country, there is a certain level of banter between staff. This is mostly good-natured, and often builds a sense of camaraderie between team members. Occasionally, the banter may stray into words or actions which an outsider might consider offensive.

It might refer to people’s gender, race, or disability, all of which are protected characteristics under the Equality Act 2010. But at what point does it amount to ‘harassment’, which is defined as unwanted conduct which creates a degrading or hostile atmosphere for the person concerned?

Mr Evans worked for a company called Xactly Corporation Limited as a Sales Representative. He suffered from diabetes, which meant that he was considered to be a ‘disabled person’.

He also had close links with the Traveller community. There was a culture in his team of teasing and jibing, which was not considered unusual for competitive salespeople under stress to achieve their targets. Many of the phrases used would not be considered ‘polite’ by an observer, including calling people a ‘second-hand car salesman’, a ‘c***’, and a ‘fat paddy’.

Mr Evans fully participated in this banter and often used these phrases himself towards his colleagues. On one occasion he had called a colleague a ‘pudding’ on occasion of her size. However, he described the people to whom he directed such comments as ‘lovely’, and colleagues noted that the banter was merely an extension of the friendship between the team members.

Unfortunately, Mr Evans and his team came under pressure due to their poor sales performance. Mr Evans, in particular, had not completed any sales deals and whilst it was acknowledged that this might take time, his performance was considered to be poor.

Unfortunately, when this was raised with him, he refused to accept any criticism. As a result, after 11months in his role, it was decided that he be placed on a performance improvement plan, which ultimately led to his dismissal.

Shortly before that, Mr Evans raised a grievance alleging that he had been called a ‘fat ginger pikey’ by a colleague whom he socialised with both at and outside work. The comment had been made sometime before, and Mr Evans had not complained when it had occurred. He also raised this issue after his dismissal as part of his employment tribunal claim. The tribunal carefully analysed the allegation made and noted that on the face of it, the comment could be seen as derogatory, demeaning, unpleasant and potentially discriminatory. However, they had to consider the context and the overall relationship and behaviour of Mr Evans and his colleagues.

They found that the comments were not unwanted in circumstances where Mr Evans was such an active participant in the office banter; they did not have the purpose of violating his dignity nor did they have such an effect, since the evidence was that he was not offended at the time. In any event, they found that it would not have been reasonable for him to have considered his dignity to have been violated given the particular circumstances and context.

Mr Evans failed in his claims and therefore appealed to the Employment Appeal Tribunal [UKEATPA/0128/18/LA].

The EAT noted that it might seem surprising that calling a colleague what many people would consider as an offensive term did not amount to harassment, especially when they had links to the Traveller community and alleged that their size was related to their disability. However, the tribunal had carefully considered all the facts and the context of the allegations, and their conclusions were therefore wholly understandable. In those circumstances, Mr Evans’ appeal failed.

Employers need to be careful about monitoring the level of banter within a team and ensuring that where employees stray into inappropriate conduct, this is dealt with appropriately. Similarly, any complaints or issues which are raised should be thoroughly investigated. However, this case is an important reminder that the context in which comments are made is an essential part of determining whether conduct strays into the legal definition of harassment or not.

Safia Tharoo
Barrister 40 Bedford Row London