Evans v Xactly Corporation Limited

Was calling an employee a 'fat ginger pikey' harassment? Not on the facts of this case, held the EAT in Evans v Xactly. Read more about this recent case.

author

James Rowland

Commercial Director James leads Account Management, Sales and Marketing at Neathouse Partners.

Date

26 October 2018

Updated

16 July 2024
2 min read

The Case

Mr Evans worked at a global software company and was dismissed for poor performance. He initially made a claim for unfair dismissal, however he did have two years employment at Xactly and this was withdrawn. Mr Evans stated that during his employment he had been subjected to comments relating to his weight and also his connections to the traveller community. He states that he was called a ‘fat ginger pikey’.

Due to Mr Evans’ poor sales he was invited to a performance meeting where a plan was proposed to improve his figures. After a plan had been given, Mr Evans raised a grievance because of the comment that had been made. The meeting was conducted and the issue was rejected. Mr Evans appealed because he felt that being called a ‘pikey’ had not been addressed, but was later dismissed from his employment due to his sales performance and the behaviour surrounding the grievance.

The Decision

It was decided that Xactly did not directly or indirectly discriminate against Mr Evans due to his race or because of the illnesses he had. Also, that there was no harassment that related to a protected characteristic or race or disability. This was because the connected to the comments and Mr Evans’ genetic links to the travelling community were too remote to be malicious. He did not claim to be from the travelling community, just that he had connections to people who were. Therefore the comment was not personally aimed at him and not harassment.In relation to Mr Evans’ disability by way of his medical conditions, there was no evidence to verify that he had an under-active thyroid. Also there was no link between diabetes (the disability) and his weight gain. It was also noted that there was an element of ‘Office culture’ where teasing is common in a competitive sales environment leading to employees (including Mr Evans) to engage in making personal comments. Therefore, it was held that the comment did not create a hostile environment nor did it undermine his dignity.

Harassment In The Workplace

Employees can experience harassment when the behaviour has not been directed at them if they have found it to be offensive. If harassment is not dealt with when it occurs it can lead to issues that could impact the business. Poor performance or low morale may occur after an employee has been subjected to harassment. This can generate absenteeism and potential resignations and also lead to a Company’s reputation being damaged.If a person experiences harassment, not only will the individual who behaved in that way be responsible, it is also possible for the employer to be liable if the behaviour was connected to their employment.

What Happens If A Complaint Has Been Made?

There may be instances where an informal approach is appropriate. For example, the incident may have occurred because an employee was simply not aware their behaviour could be classified as harassment and an informal meeting may help to explain that any similar comments or behaviour need to stop immediate.In more serious situations the disciplinary procedure may be the most appropriate way of dealing with the issue. This will need to be in keeping with your disciplinary policy as deviating from this may expose the Company to further problems.To prevent harassment in the workplace, it is important to provide employees with appropriate training that will enable them to identity which behaviours are unacceptable. Policies also need to be implemented to ensure that any complaints are dealt with correctly and in accordance with the grievance and disciplinary process so that there are no repercussions.

What can Employers do?

An employer is expected to take reasonable steps to prevent harassment from occurring. Preventative steps could include the following;

  • Ensure a harassment policy is in available for employees (for example, in the employee handbook)
  • Provide employees with training on what harassment is
  • Set up confidential communications channel for employees to make a complaint
  • Create an investigations procedure for any complaints
  • Appropriate timescales for dealing with any complaints
  • Ensure employees are protected from victimisation if they raise a harassment grievance
  • Conduct regular reviews on the harassment policy

Employers are less likely to experience issues if they have effective policies in place. It needs to be made clear to employees that harassment in any form is not tolerated. If a complaint has been made and it has been fully investigated the employer will need to respond with the most appropriate action.

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