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Is calling an employee “a Fat Ginger Pikey” harassment?

What is banter?

Banter is defined as a playful and friendly exchange of teasing remarks, all done in a good humour. Banter is common in many workplaces, and in fact, healthy banter can be good for the organisation, as well as the employees. Therefore banter is considered acceptable in many workplaces.

But, can there be a situation where banter may legally be unacceptable, or considered harassment of an employee?

What is the law on harassment?

According to the Equality Act 2010, the law protects the employees from harassment at work. To be deemed as harassment, the conduct being complained of must be unwanted, related to characteristics such as disability, sex, age, religion, race etc. The conduct could be seen as being carried out with an intention to violate the dignity of the victim, or to create an environment which is hostile, degrading, offensive or intimidating for the employee to work in.

The victim is said to be protected if they are associated with someone who has a protected characteristic. For example, a recent case of Evans vs Xactly Corporation, an employee, named Mr Evans, complained that he was harassed because of his association with a travelling community, as well as the fact he was overweight, which he explained was due to Type 1 diabetes.

Romany gypsies and other travellers are protected under the Equality Act as an ethnic Group. But the case of Mr Evans was deemed invalid, as calling an employee “a fat ginger pikey” was not considered harassment, in this particular context.

Some Facts

Mr Evans was working as a sales representative with Xactly for almost a year when the employer dismissed him on the grounds of poor performance. Mr Evans complained that his dismissal was because he had complained of harassment.

Furthermore, he had brought a couple of claims against the employer which included discrimination and victimisation, on the basis of race and disability. He also brought an harassment claim for being called, amongst other things, “a fat ginger pikey”. Mr Evans, being a diabetic was sensitive about his weight, however he was not considered overweight amongst his colleagues.

It was evident that Mr Evans had a poor performance record, as he did not make any sales during his tenure of work at the job. But the office culture, which was of healthy teasing and banter, was considered more than acceptable.
The tribunal further referred that nobody, including Mr Evans, was focusing on anyone’s protected characteristics. Mr Evans was observed to use obscene language, and was known to call one of his colleagues “fat paddy”, on a regular basis.

The employer, Xactly, stated that they followed the rules according to their company guidelines. If any employee did not adhere to these rules, according to their contract of employment, then they would be disciplined, in the appropriate manner.

Employment Tribunal

After giving due considerations to the above facts, the Tribunal decided that Mr. Evans had been dismissed merely on the grounds of his work performance, since he did not record any sales.

The tribunal also accepted that the comment “fat ginger pikey” could be considered a potentially harassing comment. However, considering the relationship Mr Evans shared with the company and his colleagues, it was not harassment in this case.

Conclusions

The claims of harassment are determined as per specific facts and the context in which these remarks are made.

Banter is acceptable in many workplaces because it is lighthearted and playful. However, if any banter is leading to someone being harassed, the situation can become serious. A workplace policy, training and clear disciplinary actions are hence important in an organisation, to ensure that no one behaves in an unacceptable manner.