Evans v Xactly Corporation Limited

Whether conduct amounts to harassment under section 26 of the Equality Act 2010 is highly fact-sensitive. The tribunal must assess the whole workplace context, including the relationships between those involved, the claimant’s participation in the relevant conduct, the purpose and effect of the conduct, and whether it was reasonable for the claimant to regard dignity as violated or the environment as hostile.

An appellate tribunal will not revisit properly reasoned findings of fact merely because the claimant disputes them. A section 15 claim also requires evidence of the asserted causal link between the disability and the relevant consequence. Reconsideration is exceptional and does not provide a means to reargue factual findings.

The claimant, a sales representative, was dismissed after approximately 11½ months’ employment. He brought claims of direct race and disability discrimination, harassment related to race and disability, victimisation, and discrimination arising from disability under the Equality Act 2010.

The Employment Tribunal dismissed all claims. It found that the workplace culture involved inappropriate mutual teasing, that the comments relied on did not amount to harassment in their context, and that disciplinary action and dismissal resulted from poor sales performance and a breakdown of the relationship. It also refused reconsideration.

The claimant sought to challenge both decisions. The central issue was whether the proposed appeals disclosed any arguable error of law rather than an impermissible challenge to the Tribunal’s factual findings.

1. The proposed appeals were dismissed. No further action was to be taken. The Employment Tribunal had made detailed findings after assessing the evidence, explaining credibility findings and the inferences drawn. The proposed grounds disclosed no error of law and amounted to challenges to factual conclusions which the Tribunal was entitled to reach.

2. The Tribunal was entitled to reject the harassment claims under section 26 of the Equality Act 2010. Although the principal comment complained of was, on its face, derogatory and potentially harassing, harassment required assessment of its context. The claimant was an active participant in the workplace’s inappropriate banter and had not been offended at the time. The comments were neither unwanted nor made with the relevant purpose; they did not have the proscribed effect; and it would not have been reasonable, in the particular circumstances, to regard dignity as violated or the environment as hostile. Richmond Pharmacology v Dhaliwal was properly applied.

3. The victimisation and direct discrimination claims failed because the Tribunal found that performance management and dismissal were caused by poor sales performance and the relationship breakdown, not a protected act or either protected characteristic. The alleged earlier complaint was not discernible to the manager and did not amount to a protected act. A person cannot be treated less favourably because of a matter of which the decision-maker was genuinely unaware.

4. The section 15 claim failed because there was no evidential basis for a causal connection between the claimant’s disability and his weight, or between that asserted consequence and the comments. The Tribunal could not supply medical expertise or speculate beyond the evidence. The later medical letter did not satisfy the fresh-evidence test in Ladd v Marshall and, in any event, did not establish the required link.

5. The refusal of reconsideration disclosed no error. Reconsideration under the Employment Tribunals Rules is limited to cases where it is necessary in the interests of justice. It does not displace the important principle of finality in litigation.

• Employment Appeal Tribunal: The claimant’s Rule 3(10) applications challenging the dismissal of his claims and the refusal of reconsideration were dismissed. No further action was ordered.
• Employment Tribunal, London (Central): Following a hearing before Employment Judge Wade and members, all claims were dismissed by reasons sent on 5 January 2018. Employment Judge Wade later refused reconsideration by a judgment sent on 13 February 2018.