The dismissal of Andy Gray today by the broadcaster, Sky shows just how importantly employers can and should take behaviour amounting to sex discrimination.
We have yet to learn the full reasons for the termination of Mr Gray's appointment as TV presenter, but it is undoubtedly related in part to his comments on more than one occasion about female referees not understanding the rules of football and the innuendo that women should not be officiating in the alleged "man's game".
There have been UK statutory provisions outlawing discrimination on the grounds of sex for more than 35 years now. Serious cases of infringement of these laws have been publicised widely during that time.
Whilst Mr Gray's comments about female officials in football were not directed at a work colleague (referees not being employed by Sky), there has been suggestion on Sky News this evening that some of the conduct alleged to have been the cause of concern involved Gray asking a studio assistant to help him to attach a microphone to his trousers. If such conduct were to be seen as being discriminatory, it was certainly carried out in the course of employment and towards a colleague, so the Equality Act is highly relevant.
The employer simply has to take a strong line here. If Gray was aware of the employer's requirement for its employees to comply with standards concerning diversity in the workplace (no doubt contained in the company's employment policies), then repeated conduct after warning has to be dealt with severely.
AVOIDING VICARIOUS LIABILITY
Apart from addressing the issues in this case, one of the reasons for this is likely to be the company's desire to be able to rely in future on the statutory defence of having taken such steps as were reasonably practicable to prevent this sort of conduct. The company would be vicariously liable in future if other staff carried out discriminatory acts and the company could not show that it deals with such matters in a serious manner.
KEY ACTION STEPS
This episode prompts employers to think about what thy need to do in order to protect themselves against a vicarious liability claim when an employee steps out of line and carries out a discriminatory act. Here is a summary of the key steps:
1. Have an up to date and clearly written equal opportunities policy. The policy will set out the standards of behaviour required and state the seriousness of a breach of its terms.
2. Make sure that breach of the equal opportunities policy will be viewed as a serious act of misconduct which could lead to dismissal. The disciplinary policy should say so.
3. Carry out regular training of employees on diversity issues.
4. Keep records of diversity training for each employee. These may well be required to be disclosed in any future Employment Tribunal proceedings where the employer wants to demonstrate it took reasonable steps.
5. Where an employee has transgressed, but not in such a serious way to warrant dismissal, make sure they receive more diversity training. Keep records of it.
6. Deal with breaches of the policy in a serious way, begin prepared to dismiss if necessary.
7. Whilst not essential, it is sometimes a practice of larger employers to set up a confidential telephone facility where staff can report concerns and receive counselling. Such a facility indicates just how reasonable the employer is trying to be.
CHECK YOUR POSITION
There is no doubt that more details about the Gray dismissal will emerge in time. For now, employers should reflect on their own procedures and policies so that thy are well placed to deal with any situations concerning discrimination.
