Discrimination Claims – Was calling an employee a “fat ginger pikey” banter or harassment?

//Discrimination Claims – Was calling an employee a “fat ginger pikey” banter or harassment?

Case: Evans- v-Xactly Corporation Limited  UKEATPA/0128/18 & 129/19/LA

What is banter?

Banter may be defined as “the playful and friendly exchange of teasing remarks” or to “exchange remarks in a good-humoured teasing way”.  It is commonplace in many workplaces.  In fact, it may also be deemed to be acceptable in many workplaces. However, is there a situation when banter is not acceptable and/or where it may legally be defined as harassment of an employee?

What is the law on harassment?

Essentially, this is as set out in the Equality Act 2010, which protects employees from harassment at work.  The conduct that the employee complains of must be unwanted, related to a protected characteristic (such as disability, race, religion, sex, age, marital status, sexuality etc.) and must also have the purpose or effect of violating the victim’s dignity or creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim.

Usually, you have to take the person as you find them, so it is not a defence to say that the comments were “banter” or that the victim is too sensitive or that the comments were not addressed to them.

Legally, the victim will be protected if they associate with someone who has a protected characteristic. In the recent case of Evans -v- Xactly Corporation Limited, an employee, Mr Evans, alleged that he was harassed due to his association with the travelling community, or due to his weight, which he said was caused by Type 1 diabetes.

The Equality Act protects Romany gypsies and some travellers as an ethnic group.

On the 15th August 2018, the Employment Appeal Tribunal, upheld the decision of the Employment Tribunal in finding that calling an employee (Mr Evans) “a fat ginger pikey” did not amount to harassment.

Facts

Mr Evans was employed by Xactly for just under a year as a sales representative, when he was dismissed by his employer on the grounds of poor performance.  He alleged that it was instead because he had complained of harassment.  Therefore, he brought a number of claims against Xactly including discrimination and victimisation on the grounds of disability and race. Furthermore, he also brought a harassment claim upon the grounds of disability and race for being called  “a fat ginger pikey” amongst other things.  Mr Evans was especially sensitive about his weight because he was a diabetic, but his colleagues did not consider him to be fat.  Finally, he also had close links with the traveller community

It is factually correct that Mr Evans’ performance was poor as he didn’t sell anything during his time working for Xactly.  However, the office culture was one of jibing and teasing between colleagues and where “banter” was deemed to be acceptable.  In fact, the Tribunal referred to it as being a workplace where conversation was “indiscriminately inappropriate” and that “nobody was either respecting or focusing on protected characteristics”.   This included Mr Evans, who used obscene language.  The “C” word was a particular favourite of his, apparently.  Additionally, he had been known to call a colleague “fat Paddy” on a regular basis.

Other terms such as “salad dodger”, “fat yoda” and “gimli” were also bandied about.

Xactly said that there was a line and that if it was crossed then staff were disciplined. However, this did not apply to the language used by Mr Evans.

The Tribunal accepted that on one occasion Mr Evans was called a “fat gingery pikey” by one of his colleagues, who was unaware of Mr Evans’ connections with the travelling community. At the time the comment was made, Mr Evans did not react or complain, and carried on as normal. Colleagues who heard the comment being made did not think it was anything out of the ordinary given that those types of comments were common place in that environment.

Mr Evans was part of a sales team. Team sales continued to be poor and the manager spoke to the entire team about what he wanted them to do to improve sales. Specifically, Mr Evans and another colleague were identified as being especially poor performers.  Mr Evans reacted badly to the criticism.  He was placed on a performance improvement plan and, subsequent to this, he then filed a grievance based upon the fact that he had been called a “pikey” some months earlier and was being singled out because of this.  During the grievance investigation, Mr Evans attempted to negotiate an exit package by asking for £78,000.00.  Xactly offered him four months’ pay (amounting to approximately £5,000.00).  Unsurprisingly, negotiations broke down.

Employment Tribunal

After considering the above facts, the Tribunal determined that Mr Evans had been dismissed solely because he did not record any sales and because the relationship between him and his boss had broken down for this reason, and for this reason alone

The Tribunal also accepted that the comment of “fat ginger pikey” is a potentially discriminatory and harassing comment to make, but the Tribunal also had to consider the context and overall relationship between Mr Evans, Xactly and its employees to properly understand whether the comment amounted to harassment.  Therefore, the Tribunal decided that the treatment did not amount to harassment as defined under section 26 of the Equality Act 2010 for numerous reasons. These reasons included that Mr Evans was an active participant in the culture of “banter”, the remark did not have the purpose of violating Mr Evan’s dignity, particularly as he was not offended, and finally, that it would have been unreasonable for Mr Evans to have considered his dignity was violated given the context and circumstances.

In simple terms, the harassment claim failed because the Tribunal concluded that the treatment of Mr Evans did not meet the harassment definition in section 26 of the Equality Act 2010.  The comments were not unwanted and Mr Evans actively participated in the banter.

Additionally, the Tribunal rejected Mr Evans’ disability claim because there was no established medical link between Mr Evans’ weight and his disability.

Employment Appeal Tribunal (EAT)

Mr Evans appealed to the EAT, but they upheld the decision of the Employment Tribunal and decided that the Employment Tribunal was entitled to reach the conclusion that it had.  In respect of Mr Evans’ disability claim, the EAT said that Tribunals were unable to guess or speculate as to specific conditions and symptoms if they do not have the medical evidence before them. Furthermore, even if Mr Evans’ weight was linked to a disability, his claim would still have been unsuccessful because he was not considered to be overweight by any of his colleagues, and the term “fat” was used as a generic unflattering adjective without any specific reference to the weight of the person to whom the remark was addressed.

Whilst the EAT highlighted that in other contexts and circumstances the outcome may have been different, it noted that harassment claims are highly fact-sensitive and context specific.

Conclusions

As stated above, harassment cases are determined according to their specific facts and the specific context in which any remarks are made. What constitutes harassment in one case, may not necessarily constitute harassment in another case.  In this regard, it is true to say that the comments made to Mr Evans could amount to discrimination and harassment in different circumstances. Certainly, calling someone a “fat ginger pikey” is on the face of it a derogatory, upsetting and distasteful comment that would offend many people.

Banter is part and parcel of many workplaces.  It is often accepted by employees because it is light hearted, playful and not taken at all seriously. However, it is not always accepted, and the situation may become more serious if someone’s “banter” leads to someone else feeling harassed.

Therefore, employers need to be wary. They will only be able to defend a claim if they are able to show that they took all reasonable steps to prevent discrimination or harassment.  Practically, this requires a workplace policy, training and prompt action to be taken against anyone who oversteps the mark before the situation gets out of hand.

Tribunals are often unimpressed with the “banter” argument, particularly if that encourages and maintains a culture of discrimination and harassment.  However, it was clear that in this case, Mr Evans was an active participant in the banter. Therefore, in reality, he was not actually being “harassed” by the remarks made.

By | 2018-10-31T15:38:27+01:00 October 30th, 2018|Employment Disputes|

About the Author:

Katherine Swinn
Katherine works as a Consultant Solicitor for Truth Legal. She is a highly experienced Solicitor skilled in Civil Litigation, Dispute Resolution and Employment Law. Katherine has worked locally in the legal profession for nearly 11 years. She is also the Honorary Secretary of the Harrogate & District Law Society.