"Fat, ginger pikey" comment was not harassment

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In Evans v. Xactly Corporation Ltd UKEATPA/0128/18/LA, the Employment Appeal Tribunal considered whether some rather offensive comments constituted harassment and/or discrimination and held that, on the particular facts of the case, they did not.

Background

Mr Evans had been employed by Xactly as a sales representative for around 11 months before he was dismissed as a result of his poor performance (he had not made any sales during his employment).

Before his dismissal, he was invited to a meeting to discuss a suggested performance improvement plan. This was, however, never put in place because, before the meeting took place, he raised a grievance complaining, amongst other things, that he had been called a "fat, ginger pikey" by one of his colleagues.

He brought various claims including direct discrimination and harassment (on grounds of race and disability), victimisation and discrimination arising out of a disability (on the grounds that his weight was caused by his disability).

Whilst he was not a traveller himself, he had strong links to the traveller community. He also claimed that his weight was caused by his disability (he claimed that he had diabetes and an underactive thyroid and that these had caused him to be overweight). The Respondents accepted that he was disabled on grounds of his diabetes but did not concede, in the absence of medical evidence, that he had an underactive thyroid and/or the effect this had on him.

Decision

Mr Evans' claims all failed on the facts and it was held that there was no harassment or discriminatory treatment – Mr Evans had been dismissed as a result of his poor performance (as had others who had not performed to the required standard).

There were some important facts which led to this conclusion:

  1. The office culture was one where banter (including "jibing and teasing") was considered the norm. No one sought to offend and no one was found to be offended. Of particular importance was that Mr Evans himself participated in the banter, using the "C word" in the workplace and regularly referring to one of his colleagues as "fat Paddy" – which showed that the conversations were "indiscriminately inappropriate" irrespective of any protected characteristics. Mr Evans had even been spoken to in respect of his own behaviour after one of his female colleagues had complained about him calling her "pudding" and always trying to hug her (which the Tribunal said was potentially a lot worse because it involved unwanted touching).
  2. The person who made the "fat, ginger pikey" comment did not know Mr Evans had links to the traveller community and none of his colleagues (other than himself) considered him to be fat. Mr Evans was also unable to provide sufficient evidence that his medical conditions caused him to put on weight.
  3. Mr Evans was also found not to have been offended by the comment. He was very friendly with the person who had made the comment (both before and after it was made) and it took him around two months to complain about it. The Tribunal accepted that, had Mr Evans been offended by the comment, he would have complained about it there and then. The Tribunal even commented that it was likely Mr Evans had only raised this as an issue to try to avoid any eventual disciplinary action and/or negotiate an exit package.

Comment

Without delving into the facts of the case it may seem odd that the comment "fat, ginger pikey" was held not to amount to harassment, especially when Mr Evans had links to the traveller community.

The decision highlights the importance of the factual matrix in harassment claims and it is clear that, in other circumstances, the comment may well have fallen within the definition of harassment. Had there been a different culture and had Mr Evans not participated in any banter, then the case could well have been decided differently.

Lessons to learn from the case include ensuring you have clear policies and provide training on what will constitute inappropriate behaviour and that you take disciplinary action when those standards are not adhered to. Don’t leave things to fester so that unacceptable behaviour becomes acceptable.

Of particular interest is that part of Mr Evans' claim stemmed from his colleague having referred to him as a "fat, ginger pikey". This is significant because whilst there is, on the face of it, nothing discriminatory about calling someone "fat", had Mr Evans been able to link his weight to a disability, his claim may well have succeeded. So a seemingly innocuous (although nevertheless pretty nasty) comment about someone’s weight could potentially be held to be discriminatory in future.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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