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‘Banter in the workplace: camaraderie or harassment?’ By Fiona Aitken (Employment Department)
Sky Sports this week ousted football commentators Andy Gray and Richard Keys after they made sexist comments about a female assistant referee. The naming and shaming of the pair has re-sparked the debate about when and how we ought to draw the line between banter in the workplace and unlawful discrimination.
In October 2010 the Equality Act was said to “signal a new era for discrimination law.” However, the question of whether it is better equipped do deal with situations such as those found in the Sky Sports studio – and let’s face it many other working environments – is yet to be fully tested in the courts.
The difficulty lies in the many forms in which sexual harassment and discrimination can take. A comment or act found offensive by one may be perfectly innocuous to another. After all it usually depends on the circumstances in question and everyone has a right to decide for themselves what behavior they find acceptable or not. Legislation therefore cannot be overly prescriptive. On the other hand harassment in the workplace is not purely left to a judgment call.
Employers can be clear regarding a number of elements in the law and by putting into practice some basic policies they can make great strides towards protecting their employees and avoiding litigation.
Case law decided before the Equality Act 2010 came into force will still apply. Therefore, a single incident can be enough to constitute harassment (Reed v Steadman, 1999), and some conduct must be presumed to be unwanted unless proved otherwise. Further, the fact that the employee has tolerated conduct for years does not mean that it cannot be unwanted. (Munchkins Restaurant Ltd and another v Karmazyn and others, 2009).
Moonsar v Fiveways Express Transport Ltd (2005) demonstrates the danger of permitting a certain culture or environment in the workplace. In that case male colleagues downloaded pornographic images onto computer screens. Their actions were held to be discriminatory even though the Claimant was never shown the images and she had not made any complaint at the time. The Employment Appeals Tribunal found that this was treatment that would obviously undermine the Claimant’s dignity. It was therefore discriminatory.
From the alternative perspective the tribunal in Smith v Vodafone UK (2000) found a comment made by a male employee to a female co-worker who had a punnet of melon slices on her desk that she has “got some lovely melons there” was a corny joke. The tribunal held the remark was made innocently and did not affect the Claimant’s dignity at work.
As these situations continue to occur there are those, such as Top Gear presenters Jeremy Clarkson and James May, that fear political correctness and employment legislation will have the effect of abolishing humour in the work place. While a line that continues to move is inevitably a difficult one to draw it seems Richard Keys said it all shortly after his resignation from Sky Sports: “Prehistoric banter isn’t acceptable in the modern world. I accept that. We failed to change when the world has changed. It was wrong. I deserve to be battered.”