‘Banter’ and breach of the Equality Act?

The recent decision of the EAT in Evans v Xactly Corporation Ltd (UKEATPA/0128/18/LA) dealt with the circumstances in which calling someone a “fat ginger pikey” could be regarded as harassment and victimisation under the Equality Act 2010.

HHJ Stacey, sitting at the EAT, said that the original Employment Tribunal were best placed to make findings of fact about the context and office culture, which was necessary in order to understand the Claimant’s allegations of harassment and victimisation. Having done so, the Tribunal was fully entitled to conclude that the comments complained of did not amount to harassment as defined in section 26 of the Equality Act. In other contexts and circumstances they might have done, but harassment claims are highly fact sensitive and context specific.

The case revolved around the use of the words “fat ginger pikey” towards the Claimant, a Sales Representative. The Claimant alleged that being referred to as “fat” was discriminatory as this arose from his disability (he relied on conditions caused by an over-active thyroid and type 1 diabetes, the latter of which the Respondent accepted amounted to a disability). The race discrimination complaint around use of the word “pikey”, which was founded on the Claimant’s association with the travelling community.

HHJ Stacey said that, in order properly to understand the harassment complaints, the Tribunal quite rightly analysed the office culture and the context of the allegations, and the nature of the relationships between the Claimant and the makers of the comments and behaviour relied on as acts of harassment. The Tribunal noted that the context in which behaviour occurs can be crucial to understanding its meaning. They found that “The office culture was of jibing and teasing; a way of operating which appears not to be unusual for competitive sales people working under stress to achieve their targets.” There was evidence that similar words were used to others on occasion, including by the Claimant himself. The Tribunal therefore found that the Claimant was an active participant in inappropriate comments and behaviour in the workplace and seemingly comfortable with the office culture and environment. The Claimant did not react or complain at the time and the evidence, which the Tribunal accepted, was that the Claimant would have done so had he been offended.

The Tribunal also accepted that on a few occasions phrases such as “salad dodger”, “fat Yoda” and “gimli” (a reference to a Lord of the Rings character) were bandied about, although none of the Respondent witnesses thought that the Claimant was actually fat, and the comments were made by the Claimant’s friends in the workplace. The Tribunal found that it “…struggled to see how [the comments] could have been particularly offensive.”
Unfortunately for the Claimant, his sales performances was poor, and the Tribunal found that this was the reason for any less favourable treatment. The Tribunal found that the Claimant was dismissed because the employment relationship had broken down and in circumstances where he had sold nothing over the previous year. The decision to discipline him was not unusual given his poor record and that was demonstrated by the way colleagues who also performed poorly were similarly treated.

The Tribunal accepted and entirely understood that on the face of it the “fat ginger pikey” comment is a derogatory, demeaning, unpleasant and a potentially discriminatory and harassing comment to make. It correctly referred itself to Richmond Pharmacology v Dhaliwal UKEAT/ 0458/08 and set out the Judgment of Underhill P (as he then was) that “Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly where it should have been clear that any offence was unintended”. The Tribunal rightly considered the context and the overall relationship and behaviour of the Claimant and the Respondent and the various employees, so that it could properly understand whether the behaviour that was found to have occurred amounted to harassment. The Tribunal explained clearly and carefully that context is key when it comes to complaints of harassment, and it was entitled to conclude that in all the circumstances the comments the Claimant had received did not constitute harassment.

Furthermore, insofar as the harassment was said to be by reference to his disability, the Claimant had not proved any relationship between his weight (which was unremarkable) and his disability, so the disability harassment complaint additionally failed on that ground.

HHJ Stacey accepted that “at first blush it may be surprising that calling a colleague what many people would consider an offensive term such as “fat ginger pikey” at work does not amount to harassment, especially where the individual has links with the traveller community, but the Tribunal considered the facts extremely carefully and it is easy to see why they concluded that the Claimant had not been harassed by this remark and it was unarguably a decision the Tribunal was entitled to come to.”

Fergus Currie