Dealing with casual sexism at work

Article date: 16.05.11

* If an employee ‘does an Andy Gray’ in your workplace, find out your liability as an employer and how you should handle the situation, to avoid legal claims and do right by your employees.

Following comments inadvertently made on-air by Andy Gray about a female assistant referee in a match he was commentating on, and comments he made off-air in December 2010 to a female colleague which were described as sexist and lewd, he was dismissed by Sky Sports.

Many commentators, particularly online, have said such comments are just banter and ‘can’t see what the problem is’, but Sky clearly felt there had been discrimination justifying dismissal, describing his behaviour as ‘unacceptable’. What is an employer’s legal position in these circumstances?

Where one employee discriminates against another on grounds of, for example, their sex, both the first employee and, in some circumstances, their employer, can be liable to a claim for sexual discrimination and/or sexual harassment. If a claim succeeds the business can be liable to pay compensation - with no limit on the amount that the employment tribunal can award, so it is important for an employer to be able to show it is not liable for any discriminatory behaviour by its employees.

Behaviour is sex discrimination if it amounts to less favourable treatment of an employee on grounds of their sex, and includes sexual harassment. If an employee has been dismissed for misconduct of any sort, including discriminatory conduct, the dismissal will be fair if the employer acted reasonably, taking into account all the circumstances. Making sexist and lewd comments is certainly capable of amounting to sexual harassment and therefore discrimination.

A claim can be brought not just by the employee the behaviour is aimed at, but by any other employee who finds the behaviour offensive. And they don’t need to have the relevant ‘protected characteristic’ themselves – for example, a man can bring a claim based on sexist behaviour by someone towards a woman colleague.

There have been cases where it has been argued that an employee cannot bring a claim based on discriminatory behaviour that has been going on for some time, as that is evidence that the employees have impliedly accepted it. That argument will generally fail as a result of recent cases, including one where waitresses in a cocktail bar who had been subjected to discriminatory behaviour for five years before bringing a discrimination claim against their employer, were successful. However, the employee does have to show that some of the behaviour took place within the last three months.

Recommendations
To avoid liability an employer must show it took all reasonable steps to stop the employee from carrying out the discriminatory act. Simply having an equal opportunities policy, implementing it, and making employees aware of it, provides the employer with significant protection. If the employer can show that it carried out a thorough investigation into any alleged discriminatory conduct, and took reasonable steps to prevent it happening again, it is in an even better position.

* This is not legal advice; it is intended to provide information of general interest about current legal issues.