Employers are held liable for the actions of employees and contract workers
Employers are held liable for the actions of employees and contract workers

Case law: it’s wise to beware of office banter

22 February 2019

A ruling by the Employment Appeal Tribunal (EAT) – upholding an earlier decision by the Employment Tribunal (ET) – has repercussions for employment law. 

In the case of Evans v Xactly Corp Ltd both tribunals found that being called “a fat ginger pikey,” among other insults, did not constitute harassment under the terms of the Equality Act 2010, which protects employees in relation to race and disability.

David Evans, who had been dismissed by the US software company, felt he had been subjected to abusive comments and discrimination, but the EAT ruled that as the office culture was one of ‘jibing and teasing,’ and because he had responded in kind to insults, he could not claim unfair treatment.

Crucially, it was the context of the ‘office banter’ that scuppered Evans’ chances of success. Whereas in other circumstances the same comments might have been seen as harassment, in this case, they were not. 

Karen Cole, senior associate solicitor at RIAA Barker Gillette in London has a background in employment law and dispute litigation. She cautions companies against misunderstanding the decision.

“This ruling doesn’t excuse questionable behaviour in the workplace,” says Cole.  

“The issue remains one of risk for procurement teams and businesses – as employers are held liable for the actions of employees and contract workers,” she says. 

The best way to avoid litigation of any kind is to ensure all employees are aware of company standards of behaviour, create a professional working environment, provide staff training, and take prompt action in the event of complaints.

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