Evans x Xactly Corporation Ltd
In an office culture of banter that included jibing and teasing where no one was seeking to offend and no one was found to be offended, the EAT in this case found that calling the employee a “fat ginger pikey” was not race or disability harassment in the particular circumstances here, despite his associations with the travelling community and his Type 1 diabetes. The finding was that the comments were not unwanted as the employee was an active participant in the banter culture, and therefore these comments did not have the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
This is a rare finding, and is certainly not a green light to offensive behaviour. It is a rare example of where the “banter defence” has worked, due to the very clear evidence the employee was an active and willing participant with only tenuous links to the protected characteristics.