D P Evans v Xactly Corporation Limited
Evans (E) was employed by Xactly Corporation Limited (Xactly) as a sales representative for just under a year when he was dismissed for poor performance. One significant factor in his poor performance was that he had not made a single sale over the course of his employment.
E brought several claims to the ET, including discrimination and victimisation on the grounds of disability and race. In particular, E alleged that he was called a "fat ginger pikey" on more than one occasion. E was a Type 1 diabetic, which is something his colleagues knew of from an early stage as he would regularly inject himself at work. Negative comments about the disability itself did not form part of E's claim, but rather the comments about his weight, which E argued was linked to his diabetes. E was sensitive about his weight although his colleagues did not consider him to be overweight. E also had strong ties to the traveller community, although many of his colleagues were not aware of this. E's race discrimination claim related to the protected characteristic of "traveller".
The ET dismissed E's claims. He was dismissed due to his poor performance and not for any discriminatory reasons. The ET accepted that "fat ginger pikey" was a derogatory, demeaning and unpleasant comment and could potentially be discriminatory. However, the ET found that the office culture was one which included jibing and teasing, and E himself was frequently involved in such "banter". He was an active participant in the culture, having called one colleague “fat paddy” and another “pudding”. E did not complain of the behaviour at the time, and continued to be friends with the colleague who had made the remark, including socialising with him out of work.
E subsequently appealed to the EAT which dismissed his appeal. With regard to the disability discrimination claim, E had not provided any medical evidence which proved any relationship between his diabetes and his weight. The EAT found that even if E was overweight as a result of his condition, "fat" was a general derogatory term and therefore the claim would still fail because it was not a specific reference to E's weight.
In addition, the EAT found that the term "fat ginger pikey" is offensive but agreed with the decision of the ET that on the facts of this particular case, the comment did not amount to harassment. The ET had correctly made reference to Richmond Pharmacology v Dhaliwal which set out 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". The ET was correct in explaining that context is key in respect of harassment claims, and it was entitled to conclude, in this case and having regard to all the circumstances that E had not been subject to harassment. The judge found that "I accept that at first blush it may be surprising that calling a colleague what many people would consider an offensive term such as “fat ginger pikey” at work does not amount to harassment, especially where the individual has links with the traveller community, but the Tribunal considered the facts extremely carefully and it is easy to see why they concluded that the Claimant had not been harassed by this remark and it was unarguably a decision the Tribunal was entitled to come to".