Evans -v- Xactly, 2018
A salesman who was called a ‘fat ginger pikey’ at work has lost his case at Employment Tribunal in London.
David Evans, part of the Traveller community, claimed to have been called a ‘fat ginger pikey’ and ‘fat Yoda’ by managers at his then-employer, Xactly.
A discrimination claim can be made if an employee can show that the Equality Act 2010 has been breached. According to the Act, discrimination takes place if someone is treated less favourably because of race, religious belief, disability, sex, sexual orientation, gender reassignment, marriage and civil partnership, and age.
He claimed his weight was caused by his diabetes – a disability under the Equality Act – and that his connection to the Traveller community meant that he should be afforded protection because of his ethnic group, which falls under race.
Whilst acknowledging that the ‘fat pikey’ comment could have been classed as harassment, the judge considered the context and deemed that his Traveller connection was a loose one. She found that at the time of the comment being made he had used the “c-word”. She therefore considered it unlikely he would have been upset by it, or that it had been made with the intention of upsetting him.
Evans told the Tribunal that he had been dismissed after expressing an interest in leaving Xactly. However, the company claimed he was laid off because he did not meet his targets. The judge agreed, stating that the dismissal reason was “clear, cogent and consistent” with the treatment of other staff who had been fired for not achieving sales targets.
What can we learn from this case?
Crucial to the Employment Tribunal decision was not only the contextual evidence surrounding the comments that were made, but also the employer’s consistency in tackling staff performance and dismissals.
It is essential to keep effective policies and procedures that are applied fairly across the board.
Of course, workplace relations should be respectful, regardless of whether the characteristic is protected by the Equality Act. Employers should ensure they have robust procedures in place to handle bullying and harassment, as well as a code of conduct encouraging appropriate behaviour.
Drop us a line if you need support with policies, procedures or general advice on employment law.