A recent ruling by the EAT concludes that referring to a colleague as a ‘fat ginger pikey’ is not harassment if the colleague in question participated in similar banter.
In the matter of Evans v Xactly Corporation Limited, available here, Mr Evans worked as a salesman for Xactly between January and December of 2016. He suffers from type 1 diabetes and this was widely known, although he was not overweight during the time of his employment.
Less widely known were his links to the travelling community. On one occasion a colleague referred to him as a ‘fat ginger pikey’, but this colleague was unaware of these links and was a friend of Mr Evans who socialized with him both before and after the comment was made. Mr Evans made no official complaint at the time.
The office environment in which Mr Evans worked was one in which jibing, teasing and inappropriate comments were commonplace, and he had willingly participated in it. He showed no apparent discomfort at being called things like ‘salad dodger’ and ‘fat yoda’. However, when his employment was terminated after his selling nothing in his first eleven and a half months and refusing to take guidance, he brought a claim of race and disability discrimination.
The original tribunal found ‘fat ginger pikey’ to be a derogatory and demeaning comment, potentially discriminatory and harassing, but ruled that it did not constitute harassment in this case because Mr Evans had been so active in the culture of banter. The comments, it found, were not intended to violate Mr Evans dignity or create an intimidating work environment, they did not do so, and it would have been unreasonable for him to claim otherwise in light of some of his own comments to fellow staff members. The tribunal also found that Mr Evans had failed to prove that his then unremarkable weight was connected to his diabetes.
The EAT upheld these findings, agreeing that Mr Evans was dismissed because of his poor performance. In relation to the ‘fat ginger pikey’ comment Mr Evans claimed that he had indeed complained at the time and had been victimised for so doing. The original tribunal examined these claims and found that the discussion in question had been a low-level one with his manager outside a pub where they had been socialising. It was satisfied with the manager’s claim that he had genuinely forgotten the conversation and that there had been no victimisation. The EAT again upheld the original tribunal’s findings.
This is a case in which context is everything. As a frequent participator in office banter the tribunal could not accept that Mr Evans had been genuinely offended by the comments, but employers should not take this as a green light to ignore such matters. Policies against name calling should be in place, complaints should be investigated to determine whether questionable comments were or were not made jovially, and only where where there is clear evidence that the comments were neither made nor taken in discriminatory manner can it be argued that an employee’s dignity was not violated.
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