Harassment at work is a huge subject for both employees (who may feel that they are being harassed) and employers (who can find themselves liable for acts of harassment carried out by their employees).

The damages that can be awarded for harassment, and other types of discrimination, are potentially unlimited so it’s a big issue.

Unlawful harassment can be on a number of grounds, including race, sex, disability, age, etc. Examples include unwanted sexual advances, touching and unwanted banter.

In the case of Evans v Xactly (commonly known as the “fat ginger pikey” case), the employee worked as a sales executive but in 11 and a half months had not made any sales so was dismissed. He didn’t have the required 2 years’ qualifying service to bring an unfair dismissal claim but instead brought a number of discrimination claims including one of harassment which he was able to bring because employees can bring these claims from day 1 of their employment (or indeed before then if they have been discriminated beforehand, for example during the recruitment process). He brought this harassment claim because he had type 1 diabetes and had links to the traveller community and felt that being called a “fat ginger pikey” by colleagues was discriminatory.

The employee claimed that he had been called a ‘salad dodger’, ‘fat Yoda’, and ‘Gimli’ (one of the characters from the Lord of the Rings), a ‘second hand car salesman’, a ‘jellied eel salesman’, and a ‘fat ginger pikey’.

But there was a problem with his claim. He too had traded insults with colleagues. He had called one colleague a ‘fat paddy’ a number of times and called a female colleague a ‘pudding’. He and colleagues had also made liberal use of the ‘C’ word.

The employee’s claim was rejected. The Employment Tribunal (in a judgment endorsed by the Employment Appeal Tribunal) found that the employee had actively participated in inappropriate comments and behaviour in the workplace and seemed to be comfortable with the office environment. It was held that the comments made to the employee were not “unwanted because of his active participation in the culture of banter, his dignity had not been violated and given the circumstances, he had not been subjected to a hostile environment.”

A big, big word of caution though.

This case turned on its particular facts. If the employee had not been so active in the office banter, the outcome could have been quite different. Whilst I have successfully defended numerous employers in similar situations (one of which involved a disgruntled Member of Parliament), I have also acted for a large number of employees in successful claims where the office environment was genuinely hostile and offensive and employees were subjected to unlawful harassment, having had to endure sexual and racial comments, jokes, etc.

Bear in mind as well that in cases of that nature, where employees are found to have unlawfully discriminated against colleagues, not only are they potentially liable for their own discriminatory acts as individuals (and that can mean awards of damages being made against them), but the employer can also be liable (and potentially unlimited damages awarded against them) if the employer has not taken reasonable steps to stop the discrimination from happening in the first place or has not properly dealt with any internal discrimination complaint.


Carl Moran

cxm@sdmlegal.co.uk

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