Although calling someone a “fat, ginger pikey” might seem, at first sight, to constitute harassment, the Employment Appeal Tribunal (EAT) held in Evans v Xactly Corporation Ltd that, as these complaints are highly fact sensitive and context specific, the tribunal was entitled to conclude that it was not in this case.
Mr Evans started working for Xactly as a sales representative in January 2016. By Spring 2016, the whole sales team was coming under pressure because of poor sales performance to the point whereby three colleagues had resigned or been dismissed. Mr Evans’ performance also came under scrutiny as he had not closed any deals by this stage.
His poor performance was mentioned again at a sales meeting in mid-October (when he had still not sold anything), but Mr Evans rejected the criticism and offers of training to improve. After his manager introduced a performance improvement plan, Mr Evans raised a grievance that a colleague had called him a “fat ginger pikey” some time previously.
In the course of the grievance investigation Mr Evans sought to negotiate an exit package for himself but he was dismissed in December 2016 after the talks broke down. He brought a number of tribunal claims, including discrimination and victimisation on the grounds of disability (he had type 1 diabetes) and race (he had close connections with the traveller community). He also brought a claim of harassment on the basis of the “fat ginger pikey” comment.
Rejecting his claims of discrimination and victimisation, the tribunal held that Mr Evans had been dismissed because of his poor performance, similar to other colleagues who had also performed poorly.
With regard to the claim of harassment, the tribunal accepted that the “fat ginger pikey” comment was potentially “a derogatory, demeaning, unpleasant and a potentially discriminatory and harassing comment to make”.
However, given the decision in Richmond Pharmacology v Dhaliwal which held that “Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly where it should have been clear that any offence was unintended”, the tribunal held that it was important to consider the context in which the comment had been made.
In this case, the tribunal held that the comment did not constitute harassment because of the culture of banter in the office which included Mr Evans calling a colleague a “fat paddy” on a regular basis. In addition, he had not reacted or complained at the time that the comment had been made to him, which he would have done had he been offended.
Noting that harassment claims are highly fact sensitive and context specific, the EAT acknowledged that the tribunal might have come to a different decision in another context and because of different circumstances.
However, it held that tribunals are best placed to make findings of fact about the context in which the allegations have been made. This was necessary in order to understand Mr Evans’ allegations of harassment and victimisation as well as direct discrimination in terms of race and disability.
Having made its findings in this case, the tribunal held that the comments about which Mr Evans had complained did not constitute harassment given the context of the office culture in which they were made. It was therefore entitled to conclude that the allegations did not amount to harassment in this case.
The decision highlights the importance of the factual elements in harassment claims and it is clear that, in other circumstances, the comment may well have fallen within the definition of harassment. Had Mr Evans not participated in any banter and had there been no culture of banter within the workplace, then the case could well have succeeded.
This highlights the importance of employers having clear policies in place, providing training on what will constitute inappropriate behaviour and taking disciplinary action when those standards are not adhered to. It is important that employers avoid allowing unacceptable conduct to brew into unacceptable behaviour.
Of notable interest is that part of Mr Evans' claim that stemmed from his colleague having referred to him as a "fat, ginger pikey". On the face of it, there is nothing discriminatory about calling someone "fat". However, if Mr Evans had been able to link his weight to a disability, his claim may have triumphed. So a harmless, but yet still offensive comment, about someone’s weight could potentially be held to be discriminatory in future.