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Even Highly Offensive Workplace Banter May Not Amount to Harassment

Irreverent and foul-mouthed banter is commonplace in some working environments and does not necessarily amount to harassment or victimisation. An Employment Tribunal (ET) made that point in rejecting a compensation claim brought by a salesman who gave as good as he got amidst a culture of teasing and jibing (Evans v Xactly Corporation Limited).

The salesman worked for a company for less than a year before his dismissal. He launched ET proceedings, claiming to have suffered race and disability discrimination, victimisation and harassment. He said that workmates had made frequent and offensive reference to his weight and close connections to the traveller community, one of them having referred to him as a 'fat ginger pikey'.

In dismissing his claim, however, the ET noted that banter is not unusual amongst sales personnel working under pressure to meet targets. He had apparently been comfortable with the office culture, had been an active participant in inappropriate comments and behaviour and had not been singled out for bad treatment.

He had not complained about name-calling until his performance came under review – he had not made a single sale during his time with the company. After attempts at negotiating an exit package failed, he had been dismissed because his relationship with his employer had irretrievably broken down.

In rejecting his challenge to the ET's decision, the Employment Appeal Tribunal (EAT) noted that, at first blush, it might appear surprising that referring to a colleague in such derogatory terms did not amount to harassment. However, the ET had considered the facts extremely carefully and, in the final analysis, it was easy to see why it reached the conclusions it did.

The salesman suffered from diabetes, which the company accepted amounted to a disability, and there was evidence that his weight was associated with his condition. However, the ET found that he was not considered overweight by colleagues and that the word 'fat' had been used as a generic unflattering adjective, rather than as a specific reference to his weight. The EAT could find no fault in that conclusion.