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Context is key when assessing whether unlawful harassment has taken place

Handling complaints of bullying and harassment effectively can be tricky.  We advise our clients that the best approach legally and commercially is to take a ‘zero-tolerance’ stance to any form of bullying or harassment as soon as you become aware of it, and to take any complaint seriously, acting promptly and decisively depending on the outcome of the investigation.

The decision of the Employment Appeal Tribunal in the recent case of Evans v Xactly Corporation Limited serves as a reminder of the fact-specific nature of harassment claims and the importance of adjudging the alleged harassment in context.

The relevant legal test of harassment under the Equality Act 2010 is two-tiered: firstly a subjective assessment of the impact or effect of the act or behaviour on the recipient, followed by an objective assessment of whether that impact or effect is reasonable in all the circumstances.  It is this second element of the test which is all important.

In deciding that Mr Evans had not been subject to unlawful harassment, it was material in the Tribunal and EAT’s assessments that Mr Evans had given as good as he got when engaging in name-calling of colleagues and the workplace culture at Xactly was accepted to be one where “jibing and teasing” were commonplace.  The combination of these factors meant that it was not reasonable for Mr Evans to find various comments which had been levelled at him by a colleague, insulting or degrading.

The fact-sensitive nature of any case means a prudent approach should be taken from the outset.  If you’re dealing with a complaint of bullying or harassment and would like some support, or would be interested to learn how the Torque Law team can train your line managers to tackle inappropriate behaviours and best protect your organisation from these types of complaint in the future, please get in touch with Tiggy or Emma.

Link to the full case: https://assets.publishing.service.gov.uk/media/5bcf210fed915d78aaef7e00/Mr_D_P_Evans_v_Xactly_Corporation_Ltd_UKEATPA_0128_18_LA.pdf

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