Case update (1): Harassment at work

Summary:  Is referring to a colleague as a “fat ginger pikey” harassment?

No, not if the victim participated in similar banter, said the EAT in Evans v Xactly Corporation Limited, available here.

Facts:   Mr Evans was a salesman of Xactly between January and December of 2016. Mr Evans suffers from type 1 diabetes and also has links to the travelling community.

It was widely known that Mr Evans had diabetes. However, he was not overweight during his employment, and there was no medical evidence to suggest that his weight was affected by his diabetes.  Although staff were aware of Mr Evans’ diabetes, few staff knew of links to the travelling community.

Having not made any sales in the first eleven and a half months of his employment, and having refused to take guidance from his manager, Mr Evans’ employment was terminated.

Mr Evans had not been employed for long enough to bring an unfair dismissal claim, but he brought Tribunal claims of race and disability discrimination.

During his employment, Mr Evans was referred to as a “fat ginger pikey“ by a colleague on one occasion. Mr Evans was on friendly terms with this colleague, and socialised with him outside work, both before and after the comment was made. This colleague had not been aware of Mr Evans’ links with the traveller community. Mr Evans did not complain about this comment at the time.

On a few occasions, Mr Evans was called a “salad dodger“, “fat yoda“ and “gimli“ (a reference to a Lord of the Rings character). Mr Evans claimed that these comments constituted harassment on the grounds of race and/or disability.

In considering his claim, the Tribunal considered the context in which the claims were made. The Tribunal found that Mr Evans was an active participant in inappropriate comments and behaviour in the workplace, and seemed to be comfortable with the office environment.  It found the office culture to be one of ‘jibing and teasing’. Mr Evans apparently often said the word “c***”, mocked a female member of staff’s weight by calling her “the pudding“, and called one of his friends a “fat paddy“ on a regular basis.

It was acknowledged however that on the face of it the “fat ginger pikey” comment is derogatory, demeaning, and unpleasant and a potentially discriminatory and harassing comment to make. However, looking at the tests for harassment, the Tribunal found that:

• the comments made to Mr Evans were not unwanted, because he had been such an active participant in the culture of banter;
• the comments did not have the purpose of violating his dignity or creating an intimidating environment for him;
• nor did they have the effect of violating his dignity or creating an intimidating environment for him, as he was not offended; and
• in any event, it would not have been reasonable for him to have considered his dignity was violated or the environment was hostile, given the particular circumstances and context.

In relation to the claim that harassment had been related to his disability, he had not proved that his weight (which was unremarkable) had anything to do with his disability. Accordingly, the Tribunal did not uphold his claims of harassment. The EAT agreed that, on these particular facts, the Tribunal was entitled to make this finding. The EAT agreed with the Tribunal that Mr Evans’ employment had been terminated because of a break down in relationship in circumstances of poor performance.

Mr Evans also claimed that he had made a complaint to his manager about being called a “fat ginger pikey“, and about being been harassed. Mr Evans said that he had been victimised for making this complaint. However, the conversation between Mr Evans and his manager had been outside a pub where they were having a drink after a football game together. The Tribunal found that Mr Evans had elaborated the discussions: the evidence showed that it had been a low-level discussion, which his manager had genuinely forgotten. The Tribunal also found that there was no evidence that Mr Evans’ manager had reacted against him after this conversation. His claim of victimisation therefore failed. The EAT agreed that the Tribunal had carefully considered the facts and had been entitled to dismiss this claim.

Implications: In this case, the context of the comments made to Mr Evans was key. Mr Evans had participated in office banter, and the Tribunal found that he was not genuinely offended by the comments made to him. However, in a different context the outcome of this case could have been very different.  In particular, the comments could have been overheard by someone else who they offended and claimed harassment.

Employers should therefore be careful not to make the mistake of relying on this case too much.  Discriminatory banter should not be ignored in the workplace. It is still best practice to have a workplace policy that prohibits name calling of any description and training should be offered to managers and staff to ensure they understand what acceptable workplace behaviour is.  If a complaint is lodged as a result of name calling, the employer should investigate the circumstances surrounding the incident and the workplace culture to properly consider whether the comments were made and received in a jovial manner. Only where it is clearly the case that the comments were not made in a discriminatory manner and were not taken at the time to be discriminatory, may it then be a defence to argue such name calling did not violate the employee’s dignity and was indicative of the prevailing workplace culture.