Did calling an employee a “Fat, ginger pikey” amount to unlawful harassment?

This was the unusual question considered by the Employment Appeal Tribunal in Evans v Xactly Corporation Ltd.

The Law

Harassment which is related to a “protected characteristic” is unlawful discrimination under the Equality Act 2010.  Relevant protected characteristics for the purposes of a harassment claim include age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.

The general definition of harassment under the Equality Act 2018 is as follows:

A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:

1. Violating B’s dignity, or
2. Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

In this case, the employee was claiming racial harassment and disability harassment.

The Facts

Mr Evans was employed by Xactly Corporation Ltd (Xactly) from January 2016 until he was dismissed in December 2016.  He subsequently brought claims against Xactly in the Employment Tribunal, including for disability harassment and racial harassment.

Mr Evans’s claims of harassment centred on a comment made by a colleague that he was “a fat, ginger pikey”.   Mr Evans was a type 1 diabetic.  He alleged that the reference to being “fat” arose from his disability and claimed that this was disability harassment.  His racial harassment complaint was founded on Mr Evans’s close connections with the travelling community.

When his case was heard by the Employment Tribunal, the Tribunal considered the office culture, the context of the allegations and the nature of the relationships between Mr Evans and the colleagues who had made the comments and carried out the behaviour relied on as acts of harassment.

The Tribunal found that the office culture was one where jibing and teasing was commonplace and where Mr Evans himself would swear and call his colleagues names.  The Tribunal noted that the comment that Mr Evans was a “fat ginger pikey” was made by a friend of Mr Evans’, very few colleagues heard the comment and those that did, did not find it out of the ordinary.   Mr Evans also did not react or complain at the time.   The Tribunal found that only one colleague knew of Mr Evans’ connections with the traveller community and so those that had heard Mr Evans being called “pikey” considered it as a random comment.   Although his employer knew of his diabetes, the Tribunal found that his colleagues did not consider Mr Evans to be fat and the comments were made by Mr Evans’ friends in the workplace.   Accordingly, the Tribunal concluded that on the facts of the case, the offending comment did not constitute harassment.

Mr Evans appealed to the Employment Appeal Tribunal (EAT).

The Decision

The Employment Appeal Tribunal upheld the Employment Tribunal’s decision.  The Judge noted that the Tribunal had analysed the context in which the comments were made and the office culture, which was necessary in order to understand Mr Evans’s allegations.  Having done so, the Tribunal was fully entitled to conclude that the comments complained of did not amount to harassment.   The Judge noted that in other contexts and circumstances they might have done, but that harassment claims are highly fact sensitive and context specific.

Points to note

As pointed out by the Employment Appeal Tribunal, name calling of this nature can potentially amount to harassment under the Equality Act 2010.  It all depends on the context including the office culture.  In Mr Evans’s workplace, as the Tribunal noted in its judgment, “the conversation was indiscriminatingly inappropriate and that nobody was either respecting or focussing on protected characteristics”.   Mr Evans himself jokingly called his colleague a “fat paddy”.

However, it is risky to assume that because an employee does not object to “banter” or joins in with it that they accept the behaviour and do not find it offensive.  Sometimes this can be a way of coping with the behaviour to avoid the bullying getting worse.  In fact, the expression “banter” has been bandied about in the news quite a lot of late, seemingly to excuse behaviours that many would find offensive.

Action to take

1. Have a clear Equal Opportunities Policy in place, train your staff on the policy to make sure they are aware of the expected standards of behaviour and to minimise the risk of legal claims.
2. Implement an Anti-Bullying and Harassment policy in your workplace.
3. Remember that what is “banter” to one person, may be offensive to another –the test of harassment involves considering the subjective reaction of the employee to the behaviour i.e. their perceptions and feelings.

Case Reference

Evans v Xactly Corporation Ltd

Please feel free to leave a comment, question or observation below. Alternatively get in touch directly: hello@realemploymentlawadvice.co.uk

This article was written and researched by Miranda Amos, Solicitor at our Salisbury Office

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