Context is key in claims of harassment

In the recent case of Evans v. Xactly Corporation Limited the EAT considered whether calling an employee a “fat ginger pikey” constituted harassment relating to disability and/or race. In the particular circumstances of this case, the EAT held that it did not.

Mr Evans was employed as a sales representative at the IT company for approximately one year prior to being dismissed for poor performance. Following his dismissal, he brought a number of claims including discrimination and victimisation on grounds of disability and race under the Equality Act 2010.

In addition to “fat ginger pikey”, Mr Evans was called other names such as “salad dodger” and “fat Yoda”. However, such name-calling took place in the context of what the Tribunal termed workplace banter. This involved Mr Evans calling an Irish colleague a “fat paddy” and mocking a female member of staff’s weight, referring to her as “the pudding”.

The Tribunal acknowledged that on the face of it the remarks made to Mr Evans could constitute harassment and discrimination, but that in this instance the office culture was one of good-natured teasing and Mr Evans took no offence at the time the comments were made.

Significantly, although Mr Evans suffered from diabetes and had a connection to the travelling community, the Tribunal found that his colleagues did not consider him overweight and few knew of his links to the travelling community.

Comment

Although the name-calling Mr Evans suffered would be considered extreme in most workplaces, the Tribunal focused on his particular workplace. The outcome of this case is likely to be considered fact-specific. As such, we would urge employers not to ignore discriminatory comments in the workplace and ensure that a company policy which prohibits name-calling is in place. This should be combined with training to ensure all staff understand what is acceptable workplace behaviour. Interestingly, this case also highlights that simple references to an individual’s weight could, in certain circumstances, constitute harassment and victimisation on grounds of disability.

Tom Fancett

About Tom Fancett

Tom has experience acting for both employers and employees, advising on the full spectrum of contentious and non-contentious matters. His experience includes advising on large commercial transactions, including redundancy and TUPE issues; undertaking buy side and sell side due diligence exercises into the employment aspects for multiple commercial transactions; coordinating multijurisdictional projects; defending Employment Tribunal claims in relation to unfair dismissal, disability and sex discrimination and whistleblowing; advising on day-to-day HR and disciplinary issues; drafting and negotiating settlement and service agreements; and reviewing company handbooks and template employment contracts.

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