“Fat ginger pikey” jibe not harassment

In most cases, an argument that an offensive comment about an employee was just “banter” is unlikely to be accepted by an employment tribunal as a defence to a claim of harassment. However, as the next case shows, context is important, and a workplace culture of banter can, in the right circumstances, help to explain potentially discriminatory conduct. 

Background

In that case, the Claimant had been employed by a software company as a sales representative for just 11 months before he was dismissed for poor performance as he had not made any sales during his employment. He had not been employed long enough to bring an unfair dismissal claim, but he brought tribunal claims for race and disability discrimination. The claims arose from an occasion during his employment when a colleague referred to the Claimant as a “fat ginger pikey”.  

ET

The ET dismissed the claim. Although the ET accepted that the “fat ginger pikey”remark was potentially discriminatory and harassing, it ruled that on the facts of the case it did not amount to discrimination or harassment.

According to the evidence, the culture in the workplace was one where teasing and banter were common. It was accepted and treated as normal within the office. The Claimant had himself participated in the banter, referring to one of his colleagues as “fat Paddy” and had been cautioned about calling a female colleague “pudding”.

As for the “fat ginger pikey” comment, the ET found that the Claimant was on friendly terms with the person who made the comment and socialised with him outside work, before and after the comment was made; that the colleague did not know that the Claimant had links to the traveller community and that the Claimant did not complain about the comment at the time and only raised it after his performance management process had begun. Finally, although most colleagues knew that the Claimant had diabetes, the Claimant had not proved that his weight (which was unremarkable) had anything to do with his condition.

Comment

In this case, the context in which the comment was made to the Claimant was decisive. The Claimant had participated in office banter and was not genuinely offended by the comment. In a different context, comments like this could well have constituted harassment. Tribunals are usually unimpressed with a “banter” argument. However, in this case it was clear that the Claimant gave as good as he got and could not argue that he was harassed by his colleague’s comment.

Evans v Xactly Corporation Limited

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