Section 26(1) of the Equality Act 2010 makes it unlawful for a person to subject another person to unwanted conduct that is related to a protected characteristic so long as that conduct has the purpose or effect  of violating the recipient’s dignity or creating an offensive, humiliating, hostile or degrading environment.

Whether conduct has that effect is an objective decision on the part of the employment tribunal but one, under section 26(4) of the 2010 Act, in which three factors must be considered: i) how the recipient perceived the conduct, ii) other circumstances of the case, and iii) whether it is reasonable for the conduct to have that effect.

This was the issue in the recent case of  Evans v Xactly Corporation Ltd [2018] UKEAT 0128_18_1508. The claimant, who had links with the travelling community, brought a claim of harassment related to race on the basis of comments directed to him whilst at work that he was “a fat ginger pikey.” Pikey is a pejorative term term related to the Irish traveller community (some background from the BBC website is here).

In the judgement (which relates just to a permission to appeal application) the EAT notes that the employment tribunal “entirely understood that on the face of it the “fat ginger pikey” comment is a derogatory, demeaning, unpleasant and a potentially discriminatory and harassing comment to make.” Indeed, exactly the same type of language in other contexts has been found to be racially aggravated criminal conduct.

However, despite this, the ET found that in the circumstances, including that the comment was made by a friend of the claimant’s and in a context of frequent other insulting comments by multiple comments from other parties that the comments did not amount to harassment.   It is a decision the EAT endorsed. This is because, applying the previous EAT decision in Richmond Pharmacology v Dhaliwal [2009] UKEAT_0458_08 that set out that “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.”

On that basis given the facts it is perhaps understandable on the application of section 26(4) of the 2010 Act that the tribunal reached the view that the conduct vis a vis the claimant was reciprocated and ‘friendly’ and so not undermining of dignity (although perhaps it would have been different if another employee had complained) even though in most cases such conduct clearly would be.

Still, I find the decision troublesome. The notion that ostensibly racist comments should not (on a liability basis) be deemed to be unwanted because there was no complaint seems to unjustly shift the burden to the victim to prove they were unwanted and injurious to one’s dignity. Elsewhere this same issue was addressed in respect of alleged sexualised banter/harassment in Munchkins Restaurant Ltd & Anor v. Karmazyn & Ors [2010] UKEAT 0359_09_2801. In that case a number of complainants alleged they had been subject to sexual harassment at work in the form of discussion about their sex lives, with which it was acknowledged they had participated in.

The employer in that case adopted a defence that the claimant’s non-complaint and participation showed this was not unwanted conduct. It was a defence the EAT entirely disregarded (para 23):

One of the lay members of this Tribunal has observed that there are many situations in life where people will put up with unwanted or even criminal conduct which violates their personal dignity because they are constrained by social circumstances to do so. A classic example, she points out, is that of the battered wife who for the sake of the children may remain at home permitting herself to be subject to violence, none of which she wishes, but all of which she endures because there is a greater benefit in what takes place. But it does not make the violence right. Putting up with it does not make it welcome, or less criminal. It is therefore not completely beyond the scope of reason to think that women in this particular situation should behave as they did. As to initiating conversation it is explained in the passages we have cited by the Tribunal as being a defensive move on behalf of the Claimants, enabling them to divert much of the intentions of Mr Moss from the intrusive personal questioning which otherwise would have taken place as to their own sexual preferences, habits and contacts.

There is certainly some evidence that the claimant in Evans was in a vulnerable situation with respect to the security of his employment that is in some sense analogous to the situation in Munchkins in which the claimants’ participation in offensive conduct was seen as a defence mechanism.

More pertinently however the Equality Act is legislation aimed as a social as well as legal purpose. What Evans case shows is that that conduct that will widely, and rightly, be held to be offensive and derogatory conduct related to race can, because of an ingrained workplace culture of prejudice, is thereby deemed to be lawful conduct. Can that be right? I wonder if a preferable approach would be to mark out such conduct as unlawful whilst allowing the question of what is just and equitable in terms of remedy very much open such that if, as the tribunal appeared to decide in Evans, there was no significant offence caused and ‘he gave as good as he got’ then only nominal damages should be awarded?