If I told you that calling a colleague with links to the Traveller community a “fat ginger pikey” might not be harassment, you would be forgiven for picking up the phone to the Solicitors’ Regulation Authority. That is, however, one of the points we can take away from the EAT’s decision in Evans v Xactly Corporation Limited, and it is difficult to fault the legal reasoning.
Mr Evans was employed as a sales representative by Xactly, a global software company. He was dismissed after 11 months on performance grounds and brought proceedings for harassment, victimisation and disability discrimination, all of which failed. Of particular interest are the harassment claims. The specific incidents he relied upon were being called said “fat ginger pikey”, “salad-dodger”, “fat Yoda” and “Gimli” (the latter being the dwarf from Lord of the Rings, so I’m told) during the course of his employment.
Evans claimed that references to his weight amounted to disability-related harassment (he has type 1 diabetes, which, he claimed, caused his weight to increase). The “pikey” reference was apparently race-related, given Evans’ close links with the travelling community (both Romany Gypsies and Irish Travellers are protected as ethnic groups under the Equality Act). The comments were unwarranted, he said, and had caused him distress.
A slam-dunk claim, right? Not quite.