In the recent case of Evans v Xactly, the Employment Appeal Tribunal held that the phrase ‘fat ginger pikey’ did not amount to harassment… but when does ‘banter’ become harassment?
Mr Evans worked as a sales representative for just short of a year before being dismissed for ‘poor performance.’ Subsequently, Mr Evans brought several claims to the Employment Tribunal which included a claim for harassment after he was called a ‘fat ginger pikey.’
The Tribunal identified that the comment was potentially discriminatory and could amount to harassment as Mr Evans was self-conscious about his weight and had links to the traveller community. However, the Tribunal assessed the context in which the remark was made, and, in this case, it was held that the comment did not meet the definition of harassment under s.26 of Equality Act 2010.
The facts that contributed to this decision included how it had taken Mr Evans over 7 months from the date of the comment to make a complaint. This indicated that Mr Evans did not truly find the comment inappropriate or unwelcome at the time it was made. Furthermore, Mr Evans had himself used offensive language in the office and therefore, he played an active role in a culture of ‘office banter’.
When considering harassment, the view of the person bringing the claim (whether the offensive comment was directed at them or not) is significant, opposed to the intention of the person making the comment.
It is important for employers to take allegations of bullying and harassment seriously and to ensure that employees are aware of the risks of ‘office banter.’ Please contact Your HR Lawyer on 0115 870 0150 or at email@example.com if you need any advice on bullying and harassment within the workplace.