In the case of Evans v Xactly, the Employment Appeal Tribunal (“EAT”) held that calling an employee a “fat ginger pikey” did not amount to harassment when considering the context in which the comment was made.
The Claimant, Mr Evans, was employed by the Respondent as a sales representative. The Claimant was dismissed for poor performance and subsequently issued a number of claims, including discrimination, harassment and victimisation on the grounds of disability and race. One of the harassment claims arose as a result of the Claimant being called a “fat ginger pikey” by one of his colleagues.
The Claimant was diabetic and was sensitive about his weight. He also had close links with the travelling community.
The Employment Tribunal (“ET”) carefully considered the office culture, the context of the allegations and the nature of the relationships between the Claimant and the colleague who made the comment.
The ET accepted that the comment “fat ginger pikey” is totally derogatory, demeaning, and unpleasant and is a potentially discriminatory and harassing comment to make. However, the ET found that the office culture was one of jibing and teasing, and the Claimant himself actively used inappropriate language in the workplace. In addition, the ET found that after the Claimant’s colleague made the remark, the Claimant continued to remain friends with him and socialised with him outside of work. Furthermore, the Claimant did not react or complain at the time the comment was made. Therefore, the ET held that the comment did not amount to harassment.
The Claimant appealed to the EAT; however his appeal was dismissed.
The EAT stated that although the term “fat ginger pikey” is offensive, they agreed with the ET that given the facts of this case and in particular the context in which the comment was made, the comment did not amount to harassment.
This case should be approached with caution as it should be noted that the decision was dependent on specific facts. In other contexts and circumstances, such a comment could amount to harassment.
Employers should be wary of the possible consequences of office ‘banter’, and should ensure that they have policies and procedures in place to minimise and deal with comments and behaviour that could amount to discrimination and harassment.
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