Mark Hamilton: Oh, the banter! But it could land your firm in trouble

'˜It was only banter' is too often used as a defence in many walks of life, with the country's employment tribunals proving no ­different.

Mark Hamilton is a partner at Dentons.

Although it might seem a ­clichéd and ultimately flimsy defence against accusations of workplace harassment, the recent case of Evans v Xactly ­Corporation Ltd shows context is key, and demonstrates that a culture of banter could potentially help an employer defend a harassment claim.

Mr Evans had been employed as a sales rep at the London office of US-based IT company Xactly for just under a year. He was ­dismissed for poor performance, having failed to make a single sale. After his dismissal, he brought a number of claims including ­discrimination and victimisation on the grounds of disability and race under the Equality Act.

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Mr Evans reported that he had been the victim of a sustained campaign of name-calling by his colleagues, who referred to him, among other things, as “fat Yoda”, “salad dodger”, “fat ginger pikey” and the fictional dwarf “Gimli” from The Lord of the Rings.

The ET found against Mr Evans, ruling that he was dismissed because of poor performance and not for any ­discriminatory reason, a decision Mr Evans subsequently appealed to the Employment Appeal ­Tribunal (EAT).

To be successful in a claim of harassment, a claimant must be able to relate their treatment to a relevant protected characteristic (such as race, religion, sex, disability etc). More specifically, the Equality Act defines harassment as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or ­offensive environment for that individual”.

Mr Evans attempted to link his claims to the fact that he suffered from type 1 diabetes and had an underactive thyroid (a disability which he blamed for his weight) and his connections to the ­traveller community, who are legally defined as an ethnic group and so protected against race ­discrimination.

The EAT dismissed the appeal. It may seem ­surprising that the use of such offensive terms were not considered to amount to harassment, especially given Mr Evans’ health conditions and connection with the traveller community. However, a closer look at the facts shows us how the EAT reached its ­decision.

The name-calling took place in the context of what was termed a “culture of banter” in which Mr Evans was an active participant. Mr Evans himself repeatedly referred to an Irish colleague as a “fat Paddy”, as part of a wider conversation the tribunal labelled “indiscriminatingly inappropriate”. Mr Evans also mocked a female member of staff’s weight, calling her a “pudding” while ­trying to “hug and cuddle” her.

Important in the EAT’s decision-making process was the fact the colleague who made the “fat ginger pikey” comment did not actually know Mr Evans had links to the traveller community. The EAT also commented that Mr Evans did not react at the time, as would have been expected had he actually been offended. Similarly, none of Mr Evans’ colleagues thought he was fat and he was unable to ­provide sufficient evidence that his medical conditions caused him to put on weight.

Although the EAT found in the employer’s favour, the outcome was very fact-specific. It does not give the green light for employers to ignore potential discriminatory comments in the workplace.

If an employer finds itself before a tribunal, it should be able to say that it took all the reasonable steps it could to prevent ­harassment or discrimination. This would include putting in place a policy prohibiting offensive name-calling, in combination with training to ensure all staff understand what is considered acceptable behaviour. Managers should also be ready to intervene if the behaviour could become a concern.

Of particular interest is that part of Mr Evans’ claim was based on his colleagues references to his weight. There is nothing discriminatory as far as the law is concerned about calling someone “fat”, as weight is not a protected characteristic in and of itself.

However, had Mr Evans been able to link his weight to his health conditions, he might very well have succeeded. This demonstrates how a seemingly innocuous (although nevertheless offensive) comment about someone’s weight could potentially be considered discriminatory.

Mark Hamilton is a partner at Dentons.