Employment Law Speed Read – 29/10/18
29th October, 2018
In Evans v Xactly Corporation Limited, the Employment Appeal Tribunal held that calling an employee a "fat ginger pikey" did not constitute harassment under Section 26 of the Equality Act 2010. This was despite the fact that the individual concerned had connections with the traveller community.
Mr Evans was employed as a Sales Representative for Xactly Corporation Limited from 4 January 2016. Mr Evans suffered from Type 1 Diabetes, and was therefore regarded as disabled under Section 6 of the Equality Act 2010 (EA 2010).
The working environment at Xactly was competitive and was described as having a culture of ‘banter’, where jibing and teasing were commonplace. Colleagues often exchanged remarks about one another. On one occasion, one of Mr Evans’ fellow colleagues, Mr Henderson, referred to Mr Evans as a “fat ginger pikey”.
Due to Mr Evans’ poor sales performance, he was dismissed by his employer on 16 December 2016. Following his dismissal, Mr Evans brought a claim against his employer under the EA 2010. Mr Evans cited various complaints, including direct discrimination and victimisation on the grounds of race and disability, and harassment.
Employment Tribunal (ET)
The ET rejected Mr Evans’ claim and found in favour of his employer. The ET held that Mr Evans’ employer had a genuine reason to dismiss him, namely due to his poor sales performance. Mr Evans and his fellow colleagues had personal sales targets and it was not uncommon for employees to be reprimanded if they failed to meet their targets. As such, Mr Evans had not been subject to direct discrimination or victimisation on the grounds of his race or disability.
Further, the ET accepted that although the remark “fat ginger pikey” was derogatory, demeaning and potentially discriminatory and harassing; in the circumstances, it did not satisfy the definition of harassment under Section 26 of the EA 2010. Mr Evans was an active participant in the ‘banter’ culture evident within the workplace and at the time the remark was made, he did not complain or react. Additionally, Mr Henderson was unaware of Mr Evans’ connections to the traveller community. As such, the remark did not have the purpose or effect of violating Mr Evans’ dignity, nor did it create an intimidating environment. Mr Evans appealed to the Employment Appeal Tribunal (EAT).
Employment Appeal Tribunal
The EAT dismissed Mr Evans’ appeal and affirmed the decision of the ET. The EAT attached significance to the context in which the remark was made and held that the ET was entitled to find that the remark did not constitute harassment.
The EAT acknowledged that it may appear surprising that the remark made by Mr Henderson did not amount to harassment, particularly as Mr Evans had connections to the traveller community. However, the EAT emphasised that claims of harassment are highly fact sensitive, and when determining whether an individual has been subject to harassment, “context is key”.
This case demonstrates the sensitive nature of harassment claims. What may be regarded as harassment in one work environment may not be regarded as harassment in another.
The Tribunal accepted that the remark used by Mr Henderson reached the threshold of racial harassment. However, considering the context in which a remark was made is paramount when determining whether or not an individual has been harassed.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.