The EAT in Evans v Xactly Corporation Limited has upheld the decision of the tribunal in finding that calling an employee a “fat ginger pikey” did not amount to harassment.
Mr Evans was employed by Xactly for just under a year as a sales representative and was dismissed on the grounds of poor performance. Evans brought a number of claims, including discrimination and victimisation on the grounds of disability and race, which were all rejected by the tribunal as the tribunal found the dismissal reasons genuine. In addition to those claims, Evans also brought a harassment claim on the grounds of disability and race for being called a “fat ginger pikey”, amongst other things. Evans was particularly sensitive about his weight as he was a diabetic, although his colleagues did not consider him to be fat. Evans also had close links with the traveller community.
The tribunal accepted that the comment is a potentially discriminatory and harassing comment to make, but the tribunal had to consider the context and overall relationship between Evans, Xactly and its employees to properly understand whether the remark amounted to harassment. The office culture was one of jibing and teasing between colleagues, and amongst other things, Evans had been known to call a colleague “fat Paddy” on a regular basis. At the time the remark was made to Evans he did not react or complain. Colleagues who heard the remark being made did not find it out of the ordinary given that those types of comments were common place in the environment. The tribunal held that the treatment did not amount to harassment under the definition in section 26 of the Equality Act 2010 for numerous reasons – Evans was an active participant in the culture of “banter”, the remark did not have the purpose of violating Evan’s dignity, particularly as he was not offended, and it would not have been reasonable for Evans to have considered his dignity was violated given the context and circumstances.
On appeal by Evans, the EAT upheld the decision of the tribunal and considered that the tribunal was entitled to come to the conclusion it had. The EAT highlighted that in other contexts and circumstances the outcome may have been different, but noted that harassment claims are highly fact-sensitive and context specific.
Paula Bailey comments:
“The comments made to the employee, in this case, could amount to harassment in other circumstances. Tribunals are often unimpressed with the “banter” argument particularly if that encourages and perpetuates a culture of discrimination and harassment. However, in this case it was clear that the claimant was an active participant in the banter so in reality was not being “harassed” by the comments made. This case demonstrates the importance of applying the test for harassment when investigating complaints of this nature. We offer in-house training on investigations and discrimination. For further details click here."