In Evans v Xactly Corporation Ltd, Evans claimed harassment related to disability (arising from Type 1 diabetes) and/or race (his association with the travelling community). He said he had been referred to as “fat ginger pikey”, “salad dodger” and “fat yoda”. The ET found that the office culture was one of jibing and teasing and Evans was an active participant, having called one colleague “fat paddy” and another “pudding”. The ET decided that the definition of harassment under S.26 Equality Act 2010 had not been met. The comments were not unwanted as Evans was such an active participant in the banter culture and had never complained of being offended. In any event, given the context and facts, the comments were not made with the intention to offend and there was no unintentional offence, given Evans’ own banter-participating behaviour. The EAT agreed. While it may be surprising that calling a colleague a “fat ginger pikey” does not amount to harassment, given the facts, it was easy to see why Evans had not been harassed under S.26 EA 2010. Note: The company was extremely fortunate. It escaped liability because Evans was the author of his own misfortune. Employers should not tolerate such banter.

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