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Peter Olszewski
Peter Olszewski,
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Is referring to a colleague as a “fat ginger pikey” harassment or banter?
30 October 2018

In Evans v Xactly Corporation Limited the Employment Tribunal (ET) was asked to consider whether Mr Evans had been subjected to acts of disability and racial discrimination, harassment or victimisation.  In particular, it was asked to consider whether a number of derogatory comments were discriminatory or merely workplace banter. 

Facts of the case

Mr Evans was a salesman for Xactly between January and December of 2016; he did not have the right to claim unfair dismissal.  However, he suffered from type 1 diabetes and also has links to the traveller community. It was widely known that Mr Evans had diabetes; though few knew of his links to the traveller community.

At work Mr Evans regularly engaged in what the ET described as workplace banter. This involved Mr Evans calling an Irish colleague a “fat paddy” and mocking a female member of staff’s weight by calling her “the pudding”. Mr Evans was also the recipient of such name calling and was called names such as “Yoda”, “Gimli”, “salad dodger” and a “fat ginger pikey”.

On hearing evidence from the parties the ET held that “The office culture was of jibing and teasing…”.

At the same time, sales across the firm were low and, in particular, Mr Evans was highlighted as having lower than expected sales figures. At this point, Mr Evans raised a grievance regarding his sales figures and included a complaint about previously being called a “fat ginger pikey”, although this was long after the comment had been made.  He alleged that from this point, having done a protected act, his days were numbered.

Eventually, Mr Evans was dismissed from the business due to low sales figures and on the grounds that the employment relationship had broken down as a result of this. Mr Evans subsequently brought claims for discrimination on the grounds of disability and race.  

The ET dismissed Mr Evans’ claim and Mr Evans appealed to the Employment Appeal Tribunal (EAT).

The EAT decision

The EAT upheld the ET’s decision.

The direct disability discrimination failed on the basis that Mr Evans had not advanced any arguments that could lead to a finding that he had been disciplined and then dismissed on account of either his race or his disability.

His claim in respect of discrimination arising from a disability also failed because there was no proven medical link between his condition and his weight. [However, even if Mr Evans was overweight as a result of his diabetes, the disability claim would still fail because the term "fat" was used as a general derogatory term without any specific reference to the weight of the person to whom the comment was addressed.]  

The case is of interest given the finding that the use of terms such as “fat ginger pikey” did not amount to harassment. Both the ET and EAT accepted that the name caller was unaware of Mr Evans’ links to the traveller community. It was also accepted that Mr Evans did not take offence or complain at the time the comment was made and that none of the very few people who heard the comment thought it was out of the ordinary for this particular workplace. 

It was acknowledged, however, that on the face of it, the "fat ginger pikey" comment was derogatory, demeaning and unpleasant and a potentially discriminatory and harassing comment to make. The ET, however, correctly referred itself to Underhill P’s earlier guidance in Richmond Pharmacology v Dhaliwal 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".

There was no evidence that the comment had been repeated and the evidence before the ET was that there was no intention, by the maker, to upset Mr Evans. There was no evidence that Mr Evans was upset at the time and the EAT noted that the only complaint came some seven months later, which they noted would be out of character for Mr Evans if he had been upset by it.   

Tips for employers

This decision does not suggest that employers can avoid liability for things said or done by employees. The facts of this case are very probably somewhat extraordinary, with offensive language being freely used, but seemingly no offence being taken. Such a workplace poses a significant risk for employers, particularly when new employees enter that specific workplace. Behaviours may at that point have become so ingrained that it becomes difficult for those employees to change their ways. 

Ignoring discriminatory banter can be costly; it is not only those against whom the comments are aimed but others who hear the comments that can also take offence and bring claims. 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 is acceptable workplace behaviour.   

Where a complaint is lodged, as a result of name calling, the employer should carry out investigations into the circumstances surrounding the incident and deal with the grievance appropriately. This may, of necessity, result in disciplinary action against the perpetrators of such comments. Employers can expect to face the brunt of any discrimination claims which might be brought by disgruntled employees. Training managers and employees, and dealing with any complaints rigorously, provides an employer with the best opportunity of avoiding liability for discriminatory acts by its employees. It is highly unlikely, in a culture involving significant banter, that the words of Underhill P will provide employers with an escape route from liability.     

Should you require any assistance in preparing a suitable workplace policy or to arrange training please contact us on 0118 952 7284.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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