Case shines a light on shocking workplace culture
LAST week, the Employment Appeal Tribunal (EAT) published its decision in the case of Evans v Xactly Corporation Limited, a large software company.
The case confirmed the decision of the London Employment Tribunal earlier this year that describing a colleague as a “fat ginger pikey” was not, on the facts of this particular case, race or disability discrimination or harassment.
Mr Evans was a sales representative at Xactly.
He was a type 1 diabetic, which his colleagues were aware of, and had, he said, been raised by a traveller family.
Although Mr Evans claimed that his colleagues were also made aware of his traveller connections, the evidence given by his colleagues was that only one person knew of any sort of connection.
Mr Evans joined Xactly in January 2016 but did not achieve any sales during the first 11 months of his employment and was put on a performance improvement plan.
Mr Evans then raised a grievance, claiming that members of the team had variously called him a “fat, ginger pikey,” “a salad dodger” “Gimli” (a dwarf warrior character from Lord of the Rings) “fat Yoda,” and “second hand car salesman”.
The fact that this kind of language was used was not disputed.
The office culture was one of teasing and jibing, with Xactly’s managing director of sales referring to the language as “banter,” in that no one was seeking to offend by use of this language and the receiver was not offended.
Mr Evans also engaged in banter himself, with his colleagues giving evidence that he referred to a colleague as a “fat Paddy” and another female colleague as “pudding” and used the word “c***” on a regular basis.
A female colleague gave evidence that she herself did not like the style of conversation but did not perceive it as unacceptable and described the language as an extension of the friendship between colleagues, meaning that this was all treated as normal, friendly behaviour.
In the course of the grievance investigation Mr Evans tried to negotiate an exit package for himself.
Xactly were willing to offer four months salary plus any commission if it became due, which was a sum in the region of £5,000.
Mr Evans was holding out for £78,000.
Negotiations broke down. Mr Evans was subsequently dismissed for poor performance and brought a claim in the employment tribunal that he had been discriminated against on the grounds of his race (the traveller connections); his disability (his weight being a factor of his type 1 diabetes) and harassment on the grounds of the protected characteristics of his race and disability.
The employment tribunal dismissed all his claims and found that Mr Evans had been dismissed because of his performance and not because of his disability or his race.
His colleagues did not perceive him as fat and only one knew of any connection with the traveller community.
On the harassment claim it found that by far the worst allegation was the “fat, ginger pikey” one and this could have been harassment but in the case of Mr Evans was not.
This was because he had not been upset about the language used at the time and had not complained about it.
The language had not undermined him and had not created a hostile working environment for him.
In the culture of the office the tribunal found that Mr Evans “gave as good as he got” and that he only raised the issue once he was notified of the performance improvement plan and that it was likely he had done so as a tactical decision.
“This was no coincidence of timing” the tribunal found.
The six day hearing inevitably attracted press interest, with some reports being accompanied by photographs of Xactly employees leaving the tribunal after giving evidence, looking a little shell shocked.
Mr Evans appealed against the decision of the Employment Tribunal but in its decision published last week the Employment Appeal Tribunal upheld every aspect of the tribunal’s decision.
The Employment Appeal Tribunal reiterated a case referred to by the Employment Tribunal in reaching its decision, that of Richmond Pharmacology v Dhaliwal: “Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly where it should have been clear that any offence was unintended.”
So Xactly won, not once but twice.
But did it really?
This was a case which involved a six day hearing at London Central Employment Tribunal.
Evidence was given on behalf of Xactly by not less than eight of its current and former employees.
The legal costs of preparing and defending the claim will on my estimate have exceeded the amount Mr Evans was demanding in settlement.
In tribunal, the general rule is that win or lose each party pays their own legal costs and so these costs will not have been recovered by Xactly.
That is not to say that employers or their insurers should inevitably cave in to demands for large pay offs rather than defend cases such as this.
However, over and above the impact on a business of the legal costs, management time involved and ordeal for staff giving evidence in a case like this is the inevitable extensive press coverage of it.
The case shone a bright light on a shocking work place culture of derogatory name calling and teasing and has linked the Xactly brand with the phrase “fat ginger pikey” for some time to come.
The time line of the case was 2016, pre-dating #metoo. Employees are now far more aware that language like this in the workplace is not normal, friendly behaviour and they do not have to put up with it.
I’m guessing that Xactly have since spent some more money making sure they’ve got an up to date Dignity at Work policy and that management and staff receive regular training on avoiding such banter in the workplace.