The law on sex discrimination and sexual harassment is nothing new – but nevertheless, many were shocked to see such a high-profile example in the news last week. Some have claimed that Andy Gray and Richard Keys engaged in nothing but banter, but it is clear that they were caught offside.
The definition of harassment in the Equality Act 2010 is unwanted conduct on discriminatory grounds which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The two football presenters probably didn’t think for a moment that they were making their remarks ‘in the course of their employment’, but although the comments were not intended for broadcast, they were still made in the studio between colleagues during their working hours. The law means that therefore, Sky could be held vicariously liable for their actions.
If their colleagues (male or female) had been offended and had decided to take the matter further, they could have brought discrimination claims against Gray and Keys themselves as well as Sky, with the potential for unlimited compensation. This personal liability is still something that many people are not aware of.
Sky would have a potential defence if they could show that it had taken “all reasonable steps” to prevent Gray and Keys from committing the discriminatory act. Examples of what can constitute reasonable steps would include having and implementing an effective equal opportunities policy, ensuring that any issues are addressed effectively to prevent them re-occurring, and possibly giving staff equal opportunities training. As urban legend has it that Sky is the kind of organisation that insists its female newsreaders leave a certain number of blouse buttons undone, it seems unlikely they would have been able to benefit from such a defence.
Clearly, from the material that has surfaced so far, there was a disciplinary case to answer against both Gray and Keys. Some people have been surprised that Sky acted so quickly in dismissing Andy Gray – while the details have not been released, there certainly was not time for them to have gone through all the steps set out in the ACAS Code, for example. Andy Gray has apparently instructed solicitors and no doubt they will be making this point.
However, in reality, when employees are paid such massive salaries (Andy Gray’s salary is reported to have been £1.7m) employment law can pale into insignificance. The potential damage to Sky’s brand and advertising revenue will have been worth far more than any employment law claim Gray could bring, especially taking into account the statutory cap on the compensatory award for unfair dismissal, which is now £68,400 (see our update here). And even if an offended employee had brought a claim, the costs to Sky would probably have been a drop in the ocean.
Despite this, there are still important points that ordinary employers can take from this whole debacle. The first is that preventing discrimination isn’t just ‘political correctness gone mad’ – it makes for a better working environment, and it also makes sound business sense. These days, bad news travels even faster than it used to, thanks to social media, and employers who turn a blind eye to discrimination could quickly find their reputation ruined, as well as having to pay potentially unlimited compensation.
If you suspect you may have an equivalent situation brewing in your organisation then it is crucial that it is addressed. We can help – why not give us a call to talk things through?
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected])