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What is harassment?
Harassment occurs where unwanted conduct related to a relevant protected characteristic* has the purpose or effect of violating another's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. A number of interesting points arise out of this definition in the context of the Andy Gray case:
An employer's problem
An employer can be liable for the discriminatory acts made by employees in the course of their employment. Therefore, if a harassment claim was brought by a Sky employee it could be made against Andy Gray personally and also against Sky. The fact that Gray's comments were made off-air does not matter as they were made in the course of his employment.
Sky would have a defence to a harassment claim if it was able to demonstrate that it had taken all "reasonable steps" to prevent Gray's conduct by, for example, implementing an effective anti-harassment policy.
Without knowing all the facts, the reaction of Sky employees to Gray's comments, or whether Sky might have a reasonable steps defence, it is impossible to say whether a harassment claim against Gray and/or Sky would be successful. What is clear, however, is that Gray's conduct was unacceptable and that Sky acted quickly to dismiss him to send a clear message that it does not tolerate sexist comments or harassment.
In practice
The Andy Gray case is a reminder to all organisations of how seriously they should treat allegations of harassment and of how important it is to:
- Brodies LLP
- Joan Cradden, Joyce Cullen, Eric Gilligan, Tony Hadden, Lynne Marr and Martha Quinn
- United Kingdom
- March 15 2011
Harassment occurs where unwanted conduct related to a relevant protected characteristic* has the purpose or effect of violating another's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. A number of interesting points arise out of this definition in the context of the Andy Gray case:
- A one-off incident can amount to harassment, which is why Sky acted immediately and suspended Gray after learning of his view that female football officials "don't know the offside rule".
- The victim need not have made it clear that the conduct was unwanted. It is therefore irrelevant that, as has been reported, Charlotte Jackson did not tell Gray that what he said was unacceptable.
- The fact that an employee has put up with the conduct for years, or joined in with the 'banter' does not necessarily mean that the conduct is not unwanted. So, Charlotte Jackson would not be prevented from bringing a harassment claim even if she had failed to complain about any previous incidents.
- The intention of the person making the remarks is not taken into consideration. It is irrelevant that Gray may not have intended to offend women - what is relevant is whether his conduct caused offence and, if so, whether that reaction was reasonable.
- Harassment can occur where unwanted conduct creates an "intimidating, hostile, degrading, humiliating or offensive environment." This refers to the working environment generally, not just for those directly involved. Gray's conduct may, therefore, amount to harassment if any Sky employee was offended, even if Charlotte Jackson and Sian Massey were not themselves.
An employer's problem
An employer can be liable for the discriminatory acts made by employees in the course of their employment. Therefore, if a harassment claim was brought by a Sky employee it could be made against Andy Gray personally and also against Sky. The fact that Gray's comments were made off-air does not matter as they were made in the course of his employment.
Sky would have a defence to a harassment claim if it was able to demonstrate that it had taken all "reasonable steps" to prevent Gray's conduct by, for example, implementing an effective anti-harassment policy.
Without knowing all the facts, the reaction of Sky employees to Gray's comments, or whether Sky might have a reasonable steps defence, it is impossible to say whether a harassment claim against Gray and/or Sky would be successful. What is clear, however, is that Gray's conduct was unacceptable and that Sky acted quickly to dismiss him to send a clear message that it does not tolerate sexist comments or harassment.
In practice
The Andy Gray case is a reminder to all organisations of how seriously they should treat allegations of harassment and of how important it is to:
- have effective equal opportunities and anti-harassment policies in place;
- ensure (through policies and training) that all employees are aware that harassment will not be tolerated and what sort of behaviour at work will be viewed as unacceptable; and
- deal with complaints of harassment properly and consistently, under fair procedures.
