Tue 31 May 2022

Evolving language, sexual harassment and the reasonable steps defence

Employment tribunal found employers defence to be so without merit that it "should never have been raised in the first place".

I can recall, as a newly qualified employment lawyer sitting with a client listening to the advocate (who was instructed to defend the client's company) explaining to the client that what might have been acceptable language when they were younger men was no longer acceptable in the workplace. Being considerably younger, I struggled to see how the client wouldn't have realised that for himself, but then I had more understanding of the modern use of the phrases in question. That was back in the 1990s. 

The case of Fricker v Gartner Ltd is an example of how language and what society finds to be acceptable continues to change, particularly when it comes to "banter" in the office, something that is often walking a fine line between what is acceptable and what is not. The case also ably demonstrates that the statutory defence to discrimination - that the employer has taken all reasonable steps to prevent it - needs far more than simply the production of an equal opportunities policy to be successful.

The claim was one of sexual harassment and constructive unfair dismissal. The claimant had repeatedly been referred to by her boss as a "good girl" despite being a mother in her thirties. She repeatedly objected to her line manager's use of the phrase. Despite this, he persisted in his use of the phrase, and his behaviour progressed to inappropriate advances that were rebuffed. The line manager then implemented a performance programmed designed to manage the claimant out of the business.  When the claimant challenged this, various managers attempted to cover for the line manager, in what seemed to be a "laddish" culture. The claims of sexual harassment and constructive dismissal were both successful.

Although there was much more to the harassment claim than the use of the phrase "good girl", it is useful to note that the employment judge stated in the judgement that "Language evolves over time.  Words and phrases that might once have seemed harmless are now regarded as racial, homophobic and sexist slurs." This is, of course, exactly why employers need to ensure that equal opportunities remain a live issue in the workplace. 

The respondent in this case had an Equal Opportunities Policy, but it was "really in name only as its drafting was poor; generalised and outmoded and not really committing to anything more than laudable aspirations". While the employment judge concluded that was better than nothing, the line manager's training was "entry-level" and "not at all sophisticated" amounting to two sessions both of which lasted less than an hour. The training had also taken place a number of years before the claim was made.  The employment judge concluded that the reasonable steps defence presented was wholly without merit, and "should never have been raised in the first place".

This appears to have been a workplace where little more than lip service was paid to the provision of training to staff on equal opportunities. However, employers can learn from the tribunal's brief description of the minimum that they would expect to see before the reasonable steps defence could realistically be relied upon by an employer. These steps were:-

 (i) implementation and regular review of a properly drafted equal opportunities policy;

(ii) evidence that the employer had taken steps to ensure all employees were aware of the policy;

(iii) the provision of and regular updating of equal opportunities training; and

(iv) having an effective policy to deal with complaints. 

For any employers who do not already take these minimum steps, the benefit of implementing these measures would not only be the potential for an employer to defend a discrimination claim, it would also greatly reduce the chances of the workplace being an environment where such a claim would arise in the first place.

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