March 2011 Newsletter
March 2011 Newsletter
In January, Andy Gray was dismissed and Richard Keys resigned from their jobs as Sky Sports presenters following sexist remarks made at work.
Sex Discrimination & Sexual Harassment
A previous newsletter has set out the provisions of the Equality Act 2010. This newsletter looks at the practical implications.
Dealing with a grievance
An employee may raise a grievance of sex discrimination or harassment. The employer should investigate the allegation to establish the facts. The conclusion of the grievance may lead to disciplinary action
The employer may, however, initiate disciplinary action where sexist comments have come to the employer’s attention without being the subject matter of a grievance.
If an employee raises an allegation of sex discrimination as a grievance, the employer, at any time during the investigation of the grievance, may decide that it should be dealt with under the disciplinary procedure. If this is the case, the person who raised the grievance should be informed, they may be interviewed further if more information is required, and they should be offered a meeting to conclude their grievance after the disciplinary process is concluded.
Alternatively the employer can choose to investigate the full facts in the context of a grievance, and once it has been concluded, start a disciplinary procedure. In this instance, the investigation into the facts of the case will be concluded although a disciplinary meeting will still need to be held to decide what the disciplinary sanction should be. However the employer should ensure that the employee accused was given an opportunity to fully defend themselves against the allegation during the grievance procedure, and if the employee brings up any new evidence at the disciplinary meeting that should be taken into consideration.
Disciplinary Action
An employer should consider whether or not it could lead to dismissal (i.e. is it potentially an offence of gross misconduct), and whether or not to suspend the employee.
If it should be obvious to the employee that it could be serious enough to merit dismissal then there is no problem classifying it as “gross misconduct” but it would be better if it could be backed up in the disciplinary procedure, staff handbook or employment contract which includes that kind of conduct as an example of “gross misconduct.” It is not uncommon for “sexual harassment” to be listed as an offence of gross misconduct. The employee should then be warned in their letter inviting them to a disciplinary hearing that dismissal is a possible consequence. If the type of offence is not one which has in the past been notified as one of gross misconduct, and if it is not obvious that it would be, then an employee who is dismissed because of it (unless they are already on a final written warning) can argue “unfair dismissal.”
Most disciplinary procedures or employment contracts give the employer the right to suspend, but even without this, there is likely to be an implied right to suspend the employee as long as the employee is paid normal pay during the suspension. The normal reasons for suspension are to enable the allegation to be investigated, or to protect the accuser until disciplinary proceedings are concluded. Suspension should not imply that dismissal is the likely sanction, nor should the absence of a suspension imply that dismissal will not follow.
The allegation should be properly investigated, by interviewing any relevant witnesses and preparing written statements, preferably signed by the witnesses. The employee could be interviewed as part of the investigation, but they don’t have to be as they will have the opportunity to put their case forward at a disciplinary meeting. The employee should then be invited to a disciplinary meeting by letter in which they are told:-
1. The allegation against them in enough detail for them to defend it (preferably with copies of any statements or written evidence)
2. If it could result in dismissal
3. Their right to be accompanied by a Union rep or work colleague
There is no need for the employer to require any witnesses to attend, the employer is entitled to rely on the written statements. However, the employee who is accused should be allowed to state his case and if he brings any witnesses with him they should also be heard. The employer can then conclude whether the allegations are proven and what the appropriate sanction should be.
To justify a dismissal the employer must consider the seriousness of the actual offence and any mitigating factors in favour of the employee.
If it is gross misconduct, the dismissal can be with immediate effect. If not, but where the employee is already subject to a final written warning they are entitled to their contractual notice. If a warning is given the employee should be informed of the type of warning and how long the warning will remain on their disciplinary record.
The employee should have the result confirmed in writing (whether or not it has been communicated to them at the disciplinary meeting) and should be informed that they have the right of appeal. Normally a deadline is given for appealing.Claims arising from sexist comments
Claims arising from sex discrimination
The employee who is the victim of the comments may make a claim to an Employment Tribunal that they have been unlawfully discriminated against either on the basis that the comments amount to sexual harassment or that they have subjected the employee to a detriment.
Harassment is defined in section 26 of the Equality Act as
- Engaging in unwanted conduct that has the purpose or effect of violating her dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or
- Engaging in any form of unwanted conduct of a sexual nature, that has the purpose or effect of violating her dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or
- On the ground of her rejection of or submission to unwanted conduct of a sexual nature, he treats her less favourable than he would treat her had she not rejected, or submitted to, the conduct.
When deciding whether particular conduct amounts to harassment, a Tribunal must consider the perception of the person making the complaint, the circumstances of the case and whether it is reasonable for the conduct in question to have the effect alleged.
If an employee cannot show the conduct amounted to sexual harassment, they may still be able to prove unlawful discrimination if they can show that they were subjected to a detriment because of their gender.Liability for sex discrimination
Liability for sex discrimination
An employee who claims sex discrimination can bring claims against either or both the employer and the individual whose conduct they complain about.They might do this if they want the perpetrator to have some personal liability, especially if there is a possibility that the employer could avoid liability or go into liquidation.Normally, under section 109 Equality Act, the employer is “vicariously liable” for the actions of their employees, so it is not a defence for an employer to say they knew nothing about it, even if the employee who complained never brought it to their attention.
However, there is a defence available to an employer to show that it took all reasonable steps to prevent that type of discrimination taking place. It is not easy for an employer to defend a claim on this basis, as Employment Tribunals do not want to make it too easy for employers to escape liability.
Normally a “Diversity” or “Equal Opportunities” Policy, which has been properly implemented, publicised to all employees and upon which management and supervisory staff are regularly trained would be needed for an employer to avoid liability for the discriminatory actions of its employees. Whilst this may be expensive and time consuming to adopt and implement, it could potentially save an employer from significant and expensive future claims.
Even when an employer cannot escape liability, the way an employer deals with a grievance will hopefully satisfy an employee who alleges discrimination to the extent that they do not pursue a claim. Even if they do, the award for “injury to feelings” is likely to be less for an employer who deals with the grievance properly.