Debbie Taylor at Mercia Group Limited warns of the dangers of insensitive or unsolicited comments made in the workplace.
A thought-provoking headline filled the newspapers recently about a well-known football commentator who resigned following a racist comment he made about a player when he thought he was off air. Certainly an end to his career in broadcasting, but also a clear demonstration of the dangers of insensitive or unsolicited comments made in the workplace.
Discrimination claims account for over a third of all tribunal cases and bullying and harassment are now referred to specifically in anti-discrimination legislation which means that compensatory sanctions against those responsible have no limit and there are also further awards available for injury to feelings, injury to health and aggravated damages.
Definition of harassment
Harassment is defined as unreciprocated and unwelcome comments relating to gender, race, sexuality, disability and religion or actions which are considered to be objectionable by the recipient.
The critical aspect of this definition is that it is the individual on the receiving end of such remarks or comments who decides whether they amount to harassment, not the person who has made the remark. So, a regular joke or personal comment that may not have worried an individual in the past may become hurtful or untenable at any time.
A vivid example of this was the owner of a local car sales business who treated his PA like a second daughter. She had worked for him since leaving school and he gave her a car when she passed her driving test and often gave her bonuses for holidays. When she planned her wedding he provided champagne for the reception and waved them off on the honeymoon he paid for. Unfortunately, he did not live happily forever after as her husband encouraged her to pursue him at tribunal for sexual harassment due to his unwelcome attention and the regular hugs he gave her.
The worrying thing for employers is that they will be equally held to account for harassment if they do nothing about the unacceptable behaviour of any of their employees. So they can no longer afford to turn a blind eye to that ‘innocent’ joking and teasing that can regularly take place in the workplace.
Key cases
The Rover Group ignored the unacceptable behaviour of their staff to Linda Taylor, who was subjected to a sustained campaign of bullying and harassment suffering verbal abuse and sexual innuendo. No steps were taken to investigate the matter or protect Ms Taylor from further bullying. As a result she suffered from depression, which lasted two to three years and Rover were obliged to pay almost £15,000 in damages.
There is not just the risk of discrimination that threatens the employer who does nothing about unwelcome remarks, jokes or verbal abuse in the workplace. In Ogilvie v Neyrfor-Weir Ltd 2003, abusive language used by a manager to an employee, who was trying to avoid travelling abroad at short notice because he would miss an engagement party, amounted to constructive dismissal. The EAT said that language acceptable on an oilrig was not acceptable in the company’s offices.
Again, in Horkulak v Cantor Fitzgerald International 2003 the court found in favour of a Senior Managing Director who was the victim of a hysterical verbal attack from the Chief Executive of the company saying that the use of foul language and unreasonable behaviour had undermined Horkulak’s role and status. He was awarded £912,000 damage for constructive dismissal.
And it is not just verbal harassment that employers need to be aware of. In the case of Reuters v Williams a member of staff agreed to attend a social meeting with her line manager who subsequently sent emails saying he would like to see her out of work and he cared for her although she had made it clear she did not want a relationship. The tribunal deemed these emails to be inappropriate in what amounted to sexual harassment.
Practical steps
Employers need to take positive steps to eliminate harassment in the workplace not only to avoid costly court cases but also to retain a motivated workforce. These include the following:
- establish a written harassment policy, with a section on email usage
- communicate the policy to all employees reminding them that harassment in any form will not be tolerated
- provide training to managers on the meaning of bullying and harassment and how to deal with it promptly and efficiently
- establish effective measures to allow employees to complain about any instances of harassment in the form of a grievance policy
- ensure disciplinary procedures are in place to deal with acts of harassment and include harassment as a specific example of misconduct in the disciplinary policy.
