Was calling an employee a "fat ginger pikey" harassment?
Not on the facts of this case, held the EAT in Evans v Xactly.
Mr Evans was employed as a sales representative for just short of a year, when he was dismissed for poor performance. He brought a number of claims, including discrimination and victimisation on the grounds of disability and race. An employment tribunal rejected these claims and found the employer's reason for dismissal genuine.
But he also brought an harassment claim on the ground he had been call a "fat ginger pikey" on at least one occasion. Mr Evans was sensitive about his weight (he was diabetic - but his colleagues did not consider him fat). And he had strong links with the traveller community. The tribunal had understood that, on the face of it, the comment is a potentially discriminatory and harassing comment to make. But it assessed the context in which the remark was made. The office culture was one of good natured jibing and teasing among competitive sales people. And at the time Evans did not take the remark amiss. The tribunal concluded the treatment did not meet the harassment definition in s26 of the Equality Act 2010.
The EAT considered the tribunal was entitled to come to this conclusion, given that harassment claims are highly fact sensitive and context specific.
Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary.