01 November 2018 #Employment
The EAT has handed down its decision in Evans v Xactly finding that, calling an employee a “fat ginger pikey” did not amount to harassment on the facts of the case.
The Claimant was employed as a sales representative for Xactly Communications Limited where he was dismissed due to his poor performance.
The Claimant brought a number of claims against his employer, including a claim for harassment on the basis that he had been called a “fat ginger pikey” by a colleague. The Claimant had strong links to the traveller community and had type 1 diabetes. This, he said, made him sensitive about his weight, making the comment particularly offensive. He was also called fat Yoda, a salad dodger and Gimli (a dwarf from Lord of the Rings).
It is undisputed that on the face of it “fat ginger pikey” is derogatory, demeaning and unpleasant and the Tribunal accepted that it was potentially discriminatory and harassing. How then did the tribunal not find the comment to constitute harassment?
The tribunal conducted an analysis of the office culture in which the Claimant worked and his relationship with his colleagues. The tribunal heard that the Claimant called his colleagues “c****” and other equally irreverent names, including derogatory references to weight such as “fat paddy”.
The tribunal found that “the office culture was one of jibing and teasing; a way of operating which appears not to be unusual for competitive sales people working under stress to achieve their targets.” The tribunal found that it was “banter” in which “no one was seeking to offend”.
As the Claimant was an active participant in the inappropriate comments in the office, the tribunal “struggled to see how [the comments] could have been particularly offensive to him”. Therefore, his claims were rejected. The Claimant appealed the decision with particular regard to the “fat ginger pikey” comment.
At appeal, The EAT upheld the Tribunal’s decision finding it was right to conclude that this comment, as well as the others, did not amount to harassment.
The findings of the Tribunals in this case demonstrate that context is key in harassment claims. The comments could well have amounted to harassment in different circumstances.
Whilst employers may welcome the decision, operating a working environment such as this one should not be something to aspire to and will leave them susceptible to claims, even if such claims, ultimately, do not meet the legal requirements!