The recent Sky Sports case highlights the problems that gender harassment in the workplace can create for employers, let alone long-suffering employees. The advertising sector is not necessarily known for being free of these issues and it is essential that employers act appropriately and promptly, as Chris Stack reports.
Who: Sky Sports
When: January 2011
Where: United Kingdom
Law stated as at: 28 February 2011
The term "office banter" denotes an image of the exchange of good-humoured, friendly and playful remarks between colleagues. However, the sacking of Sky Sports presenter Andy Gray and the resignation of his fellow presenter Richard Keys shortly afterwards has brought to the fore a question which interests and affects the vast majority of employees in the UK. When does "office banter" cross the line and become bullying?
Gray and Keys were recorded making comments about assistant referee Sian Massey and West Ham vice-chairman Karren Brady. Subsequently footage was released of Gray asking co-presenter Charlotte Jackson to help him tuck a microphone cable down his trousers, whilst in a separate incident Keys was filmed lewdly questioning Jamie Redknapp about his sexual relationship with a woman.
The sacking of Gray and the resignation of Keys was not typical of many workplace disputes as it would appear that none of the women involved made a formal complaint against the men involved. However, it is important for employers to be aware of the line between banter and bullying and the legal obligations that they have in relation to the conduct of their employees. If not, they could find themselves embroiled in costly and time consuming litigation that could seriously damage the employer's reputation.
The key risk areas are highlighted below.
Potential Employment Tribunal Claims
There is no legal distinction between "banter" and harassment. Under the Equality Act 2010 harassment occurs where an individual engages in unwanted conduct which has the purpose or effect of violating someone's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment (our emphasis). The unwanted conduct could relate to age, disability, gender reassignment, race, religion or belief, sex or sexual orientation.
This leaves employers with a real risk that an offended person could bring a harassment claim even if the conduct in question was intended as good humoured banter or was not aimed at them/did not involve them. Similarly, the offended person does not have to raise the unwanted conduct as an issue with their employer before commencing formal action. To use the Andy Gray and Richard Keys example, if the programme had a male producer who had been offended by the comments made about Massey and Brady then he could have brought a claim for harassment.
The test is clearly subjective and means that an employer could face a multitude of claims from employees who are "over sensitive". The Equality Act 2010 tries to address this issue by introducing an objective assessment: was it reasonable for the conduct in question to have the effect of violating someone's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment? This objective assessment will be made at an Employment Tribunal hearing, by which stage the process of litigation will have caused the employer to incur significant legal costs.
Constructive Unfair Dismissal
Employment contracts contain certain implied obligations. For the employer these include a duty to take reasonable care of the health and safety of employees, including their mental health, and a duty to provide a suitable working environment, which includes protecting employees from unacceptable behaviour. Both employers and employees are also bound by the mutual duty to maintain trust and confidence.
If an employee is subjected to unwanted conduct in the workplace which amounts to harassment, then the employee may claim that this is in breach of the implied terms in their employment contract. Consequently, the employee may resign and treat themselves as constructively dismissed. Providing that they have more than 51 weeks service, this will allow them to bring a claim for unfair dismissal in the Employment Tribunal as well as a harassment claim.
What can employers do to protect themselves?
There are a number of steps that employers can take to reduce the risk of receiving a successful claim of harassment, bullying or discrimination:
- Ensure that they have policies on equal opportunities, bullying and harassment, that employers are regularly made aware of the policies and that the policies are kept up-to-date;
- Ensure that staff are regularly provided with training on equal opportunities and harassment. It may be useful for managers to have additional training to help them recognise and deal with harassment at an early stage and before it becomes litigious;
- Ensure that they have up-to-date and effective grievance and disciplinary policies which allow offended employees to report instances of bullying or harassment, the allegations to be investigated and offenders sanctioned. Ensure that staff are made aware of these policies; and
- Take any reports, rumours or allegations of harassment seriously and ensure that they are dealt with expediently and in a professional and confidential manner. Reassure employees that they will not be victimised in any way as a result of making any such allegations.
By taking these steps employers can try to create an open culture where employees feel able to report harassment without resorting to the formal Employment Tribunal litigation process. Effective policies, procedures and training can help avoid costly litigation.