Discrimination: Was it harassment to call a colleague with Type 1 Diabetes a "fat ginger pikey"?

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Discrimination: Was it harassment to call a colleague with Type 1 Diabetes a "fat ginger pikey"?

Published 13 November 2018

The facts

Mr Evans was employed by Xactly Corporation Limited as a sales representative. Having not made any sales in the first eleven and a half months of his employment, and having refused to take guidance from his manager, his employment was terminated. The tribunal found that it had been terminated because of a break down in relationship in circumstances of poor performance. Mr Evans had not been employed for long enough to bring an unfair dismissal claim, but he claimed to have been discriminated against on the grounds of race and disability.

Mr Evans suffers from type 1 diabetes. However, he was not overweight during his employment, and there was no medical evidence to suggest that his weight was affected by his diabetes. The tribunal believed his colleagues when they said that they did not consider him to be fat, though they were aware of his diabetes.

During his employment, Mr Evans was referred to as a “fat ginger pikey” by a colleague on one occasion. Mr Evans was on friendly terms with this colleague, and socialised with him outside work, both before and after the comment was made. This colleague had not been aware of Mr Evans’ links with the traveller community. Mr Evans did not complain about this comment at the time. On a few occasions, he was called a “salad dodger”, “fat yoda” and “gimli” (a reference to a Lord of the Rings character). Mr Evans claimed that these comments constituted harassment on the grounds of race and/or disability. In considering his claim, the tribunal considered the context in which the claims were made. It looked at the office culture, which it found to be one of “jibing and teasing”. Mr Evans apparently often said the word “c***”, and called one of his friends a “fat paddy” on a regular basis. The tribunal found that Mr Evans was an active participant in inappropriate comments and behaviour in the workplace, and seemed to be comfortable with the office environment.

Looking at the tests for harassment, the tribunal found that:

a) the comments made to Mr Evans were not unwanted, because he had been such an active participant in the culture of banter;

b) the comments did not have the purpose of violating his dignity or creating an intimidating environment for him;

c) nor did they have the effect of violating his dignity or creating an intimidating environment for him, as he was not offended; and

d) in any event, it would not have been reasonable for him to have considered his dignity was violated or the environment was hostile, given the particular circumstances and context.

In relation to the claim that harassment had been related to his disability, he had not proved that his weight (which was unremarkable) had anything to do with his disability. Accordingly, the tribunal did not uphold his claims of harassment. The EAT agreed that, on these particular facts, the tribunal was entitled to make this finding.

Mr Evans also claimed that he had made a complaint to his manager about being called a “fat ginger pikey”, and about being been harassed. Mr Evans said that he had been victimised for making this complaint. However, the conversation between Mr Evans and his manager had been outside a pub where they were having a drink after a football game together. The tribunal found that Mr Evans had elaborated the discussions: the evidence showed that it had been a low-level discussion, which his manager had genuinely forgotten. The tribunal also found that there was no evidence that Mr Evans’ manager had reacted against him after this conversation. His claim of victimisation therefore failed. The EAT agreed that the tribunal had carefully considered the facts and had been entitled to dismiss this claim.

Mr Evans also claimed that he had suffered less favourable treatment arising in consequence of his disability. However, the tribunal found no causal link between Mr Evans’ size and his disability. The tribunal also dismissed this claim, and the EAT found that it was entitled to do so on these facts.

What does this mean for employers?

In this case, the context of the comments made to Mr Evans was key. Mr Evans had participated in office banter, and the tribunal found that he was not genuinely offended by the comments made to him. However, in a different context, comments like this could well have constituted harassment. The comments could also have constituted harassment in this context if someone other than Mr Evans overheard the banter, was offended by it and bought a claim.

Evans v Xactly Corporation Limited

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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