Office ‘Banter’ wins over discrimination appeal

By February 27, 2019Employment Law

A global software company salesman lost his final appeal for discrimination in November 2018 after complaining about being called various names, including “fat ginger pikey”, “wonky eye” and “salad dodger” in the workplace.

The salesman, David Evans, had been dismissed in December 2016 due to poor sales performance.  However, his dismissal took place after only 11 months employment – falling below the qualifying period in which employees can claim for unfair dismissal.  Mr Evans however made a claim for race and disability discrimination instead. The case reached the Employment Appeal Tribunal who considered whether such comments could be considered discrimination, and, while they usually could be, when taking into account the facts of this case, it was established that they were not.

Mr Evans claimed that he was victimised by his former bosses and colleagues due to his race (as he had strong links to the traveller community) as well as his disability (as he was a diabetic and had an underactive thyroid gland, which he said caused him to gain weight).   Therefore, he felt that some comments, such as “fat ginger pikey” addressed his race, while others, such as “salad dodger” were in reference to his weight, and thus, he felt that these constituted harassment, as well as discrimination due to his disability.

However, during the case it was established that the office culture at Xactly was one of ‘banter’ where good-humoured teasing and joking was participated in by all; indeed MR Evans himself had previously joined in and was further said to have used the ‘c word’ around the office.  It was established that the intention between colleagues was not for offence to be taken. Furthermore, many of those who made the comments towards him either were not aware of his links to the traveller community or his illnesses, they did not think he was fat, or both. Mr Evans had also failed to prove that his weight gain was linked to his disability. Lastly, Mr Evans also waited months to complain about the insults, leading the Employment Tribunal to believe that he potentially only made the discrimination claims to help him negotiate an exit package or avoid any disciplinary action.

The Employment Appeal Tribunal concluded that Mr Evans had not been subjected to discrimination based on his race and/or disability at his former workplace. The case of Evans v. Xactly Corporation Ltd therefore brings to our attention the importance of the factual background of harassment claims.  In order to avoid such claims however, employers should always have clear policies in place and regular training on such issues. And crucially, any complaint that is made should be dealt with quickly to avoid matters escalating.