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“Fat Ginger Pikey” – Harassment or Banter?

Mr Evans was employed by Xactly Corporation Limited as a Sales Representative for just under a year when he was dismissed for poor performance. A regular participant in the office “banter”, Mr Evans brought claims for harassment and discrimination on the grounds of disability and race after his colleagues had called him a “fat ginger pikey”, “fat yoda” and “salad dodger” amongst other names on more than one occasion.

Was Mr Evans subject to harassment and/or discrimination?

Mr Evans was employed by Xactly Corporation Limited as a Sales Representative for just under a year. Around 6 months into his employment the team in which Mr Evans was in came under pressure concerning sales. Mr Evans was one of the employees who was seen not to be underperforming as he not concluded any deals. Whilst the company appreciated that allowances needed to be made for him as a new starter, they considered his sales performance to be extremely poor. When the Manager discussed this with Mr Evans he began to answer back and not take any guidance. Mr Evans’ poor performance continued and a decision was eventually reached to dismiss him.

After his dismissal, Mr Evans brought claims for harassment and direct discrimination on the grounds of disability and race. These claims were due to his colleagues having called him a “fat ginger pikey”, “fat yoda” and “salad dodger” amongst other names on more than one occasion. Mr Evans was overweight and has type 1 diabetes. He also had strong links with the traveller community.

The company argued that most of Mr Evans’ colleagues were not aware of his diabetes or his links to the traveller community, nor did they consider him to be fat. It further argued that Mr Evans was never upset or offended by the comments or found them to be amiss. In fact, Mr Evans joined in on this office culture calling one of his colleagues a “fat paddy” on a regular basis (his colleague was Irish).

Was Mr Evans subject to harassment and/or disability discrimination?

Decision

The Employment Tribunal dismissed Mr Evans claims. It found that he was an active participant in inappropriate comments and behaviour in the workplace and seemingly comfortable with the office culture and environment. It concluded that the comments did not amount to harassment as defined by the Equality Act 2010 because of the context in which they were made. The comments weren’t intended to cause offence and hadn’t.

The tribunal accepted that in another context they might have been harassing.

In relation to the disability discrimination claims, the Tribunal found that Mr Evans had failed to establish a link between his diabetes, weight and any alleged less favourable treatment.

The Employment Appeal Tribunal agreed with the Employment Tribunal and said that they were correct in making findings of fact about the context and office culture, as these were necessary in understanding Mr Evans’ allegations.

Comment

This decision seems unusual at first glance, given the nature of the comments and inherently race related nature of them but the tribunal correctly took the office culture and Mr Evans’ character into consideration. In a context where Mr Evans had not so regularly and heavily participated in the office “banter” another decision would likely have been reached.

Harassment under the Equality Act 2010 is defined as “unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.” In determining whether something is harassment or “banter”, the recipient’s view is usually more important than the intention of the person making the comments.

Employers will be liable for acts of discrimination, including where banter crosses the line, unless the employer can show that it took all reasonable steps to prevent the relevant employee from committing the act of discrimination. Employers must, therefore, make sure that their policies and procedures are up to date and employees are aware of what is expected of them in the workplace.

It’s impossible (and unhealthy) to sanitise the workplace but banter for one individual may be harassment for another, so you allow banter to get out of hand at your peril……

If you have any queries please do not hesitate to contact the employment team on 01228 552600 or 01524 549494.

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