In the recent case of Evans v Xactly Corporation Limited the Employment Tribunal (ET) was asked to consider a claim of unfair dismissal on the grounds of disability and race discrimination under the Equality Act 2010. In particular it had to consider whether the derogatory comments made were discriminatory or mere workplace banter.

Facts of the case

Mr Evans was a salesman of Xactly between January and December of 2016. Mr Evans suffers from type 1 diabetes and also has links to the travelling community. It was widely known that Mr Evans had diabetes though few knew of his links to the travelling community.

At work Mr Evans regularly engaged in what the ET described as workplace banter. This involved Mr Evans calling an Irish colleague a “fat paddy” and mocking a female member of staff’s weight by calling her “the pudding”.

Mr Evans was also the recipient of workplace name calling and was called names such as “Yoda”, “Gimli”, “salad dodger” and a “fat ginger pikey”.

On hearing evidence from the parties the ET held that “The office culture was of jibing and teasing …”

At the same time sales across the firm were low and in particular Mr Evans was highlighted as having lower than expected sales figures. At this point Mr Evans raised a grievance regarding his sales figures and included a complaint about previously being called a “fat ginger pikey”, although this was long after the comment had been made.

Eventually Mr Evans was dismissed from the business due to low sales figures and on the grounds that the employment relationship had broken down as a result of this. Mr Evans subsequently bought a claim for unfair dismissal on the grounds of disability and race discrimination.

The ET dismissed Mr Evan’s claim and Mr Evans appealed to the Employment Appeals Tribunal (EAT).

The EAT decision

The EAT upheld the ET decision.

On the disability discrimination point it was noted that Mr Evans was not overweight and there was no proven medical link between his condition and his weight. However, even if Mr Evans was overweight as a result of his diabetes the disability claim would still fail because the term "fat" was used as a general derogatory term without any specific reference to the weight of the person to whom the comment was addressed.

With regard the name calling of “fat ginger pikey”, the ET and EAT accepted that the name caller was unaware of Mr Evans links to the traveler community. It was also accepted that Mr Evans did not take offence or complain at the time the comment was made and that the very few people who heard the comment did not think it was out of the ordinary for the workplace.

It was acknowledged however that on the face of it the "fat ginger pikey" comment is derogatory, demeaning, and unpleasant and a potentially discriminatory and harassing comment to make. The ET however correctly referred itself to the case of Richmond Pharmacology v Dhaliwal and set out the Judgment of Underhill P (as he was then) where he stated 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".

Tips for employers

Employers’ should be careful not to make the mistake of relying on this case too much and it does not mean discriminatory banter should be ignored in the workplace. It is still best practice to have a workplace policy that prohibits name calling of any description and training should be offered to managers and staff to ensure they understand what is acceptable workplace behavior.

Where a complaint is lodged as a result of name calling the employer should carry out investigations in to the circumstances surrounding the incident and the workplace culture to properly consider whether the comments were made and received in a jovial manner. Only where it is clearly the case that the comments were not made in a discriminatory manner and were not taken at the time to be discriminatory, it may then be a defence to argue such name calling did not violate the complainant’s dignity and was indicative of the prevailing workplace culture.