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Just office banter? Why it’s not always a joking matter

Employers should remember that office banter must never go too far – even though a tribunal has ruled that a sacked salesman, called a “fat ginger pikey” by his colleagues in an office where “jibing and teasing” were commonplace, was not the victim of harassment.

David Evans, who worked for the global software company Xactly Corporation Ltd, said he was insulted by workmates because of references to his illness-related weight gain and ethnic background.

This included, he said, being compared to the Lord of the Rings character Gimli the dwarf, being called a ‘fat Yoda’ and being dubbed a ‘salad dodger’ at least ten times in eight months by his bosses.

Poor sales record

He was fired, according to his employer, because he had not made any sales in more than 11 months of employment and had refused to take any advice or guidance from his manager.

But Mr Evans claimed he had been unfairly dismissed on the grounds of disability and race discrimination under the Equality Act 2010.

An employment tribunal dismissed his claim and the Employment Appeals Tribunal (EAT) backed its decision, finding that Mr Evans had not suffered harassment, victimisation or discrimination when he was sacked from his job.

‘Active participant in inappropriate comments’

Although Mr Evans claimed it was his race – he said he was brought up by a Traveller family – together with, diabetes and thyroid-related weight gain which made him the target of cruel jibes, it was found that he couldn’t show a link between his illness and putting on weight.

Crucially, all the indications were that he was not upset by the comments at the time. Mr Evans was a regular, active and enthusiastic participant in office banter and “inappropriate comments” and was “seemingly comfortable with the office culture and environment.”

And whilst concluding that in different circumstances the comments made about him could have constituted discrimination or harassment, the EAT noted such claims were “highly fact sensitive and context specific”.

It added: “The claimant did not advance any arguments which could possibly lead us to conclude that the reason he was disciplined and then dismissed was his disability or race.

“The reason he was dismissed is very clear, cogent and consistent with the treatment of other staff who failed to make sales.”

Advice for employers

This case certainly doesn’t mean it’s safe to turn a blind eye to potentially discriminatory banter in the office.

The key question is what is the reason for the dismissal? In this case the tribunals considered the office culture and the context of the allegations as well as workplace relationships and behaviour. Every case will turn on its own specific facts.

It is vital to make sure all policies and procedures are up to date, that employees and workers are aware of what is expected of them in the workplace and that there is a robust complaint investigation process in place.

For help and guidance about this area of the law, please contact Wards Solicitors’ Business Employment team or Julia Beasley directly.

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