In the case of Evans v Xactly, the EAT was asked to consider whether comments made by one employee to another constituted harassment. In coming to the conclusion that an employee, who had on at least one occasion been called a "fat ginger pikey" had not been harassed, the EAT agreed that the Tribunal rightly considered the context and the overall relationship and behaviour of the employee and his colleagues, so that it could properly understand whether the behaviour amounted to harassment. The EAT upheld the Tribunal's argument that context is key when it comes to complaints of harassment.
The EAT carefully considered the definition of harassment and applied it to the facts of this case, finding:
(1) the comments were not unwanted since the employee was such an active participant of the culture of banter (for want of a better word for it);
(2) they did not have the purpose of violating the employee's dignity or creating an intimidating etc environment for him;
(3) nor did they have the effect of violating the employee’s dignity or creating an intimidating etc environment for him, as he was not offended;
(4) in any event it would not have been reasonable for him to have considered his dignity was violated or the environment was hostile etc given the particular circumstances and all the context and material facts relevant to the claim.
This is an encouraging case for employers who struggle to contain the "banter" in their workplaces. Nevertheless, this case is fact specific, and employers should always take steps to limit offensive language and/or comments amongst colleagues.
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