Ian Pettifer, Employment Law Specialist, Tayntons LLP, Gloucestershire on 'calling Sexual Harassment offside'

28th January 2011 09:21

News that Sky Sports Presenter Andy Gray has been sacked and is taking advice from his lawyers, while Richard Keys has resigned, to make a series of public apologies, is as Ian Pettifer, Employment Law Specialist, Tayntons LLP highlights a timely reminder to employers and employees of the dangers of making sexist remarks - even if they were intended as a joke.

TV presenters are usually freelance, either through their own company or directly engaged. They are not usually treated as employees of the business for whom they work.  This works well for tax purposes, and gives flexibility, but freelancers and independent contractors can be harder to keep under control.

Laws on equal opportunities include a wide class of people working within a business as “employees” and will include most freelance arrangements.  The Equality Act 2010 brought together and extended the existing laws protecting employees from unlawful discrimination and harassment at work.

Harassment has a wide definition, including harassment on grounds of age, disability, race, religion, sex or sexuality, and including any conduct which has the effect of violating an employee’s dignity or creating a hostile or offensive environment, or engaging in unwanted sexual conduct. This does not ban jokes outright, but risqué jokes are exactly that – risky.

The Equality Act 2010 also extends the responsibility of companies in a very significant way. An employer can now be responsible for harassment of its employees by a third party, such as a customer, or a person who works for a business partner.

The employer would not be held responsible on the first two occasions, but if it happens for a third time, the employer knew it was going on, and they did not take all reasonably practicable steps to stop it, then they are legally held to account.

There can be little doubt that this is wide enough to cause the FA to worry if a TV presenter from Sky made offensive comments about its female linesman, just as it would cause Sky Sports to worry if a TV presenter made rude remarks to a female employee. The Football Association obviously have a duty towards its linesmen whether male or female, to protect them from unlawful harassment. Sky Sports would not want to cause the FA a problem, and also have a duty towards their own staff.

It is hardly surprising if Sky Sports chose to dismiss Andy Gray. The big question is whether the contract allowed them to do it, or if not, does he have grounds for a claim for breach of contract?

Big TV companies and celebrity presenters can afford an army of lawyers when they need them, but even for small businesses, trying to pick themselves up after the downturn and the terrible weather, investing a small amount of money on getting contracts right at the start, can save a small fortune in legal fees and damages later. 

In tough times, small companies often set up self-employed and freelance arrangements, rather than taking on employees, to give themselves flexibility.  The lesson for businesses is to ensure that they have appropriate control over their freelancers and independent contractors. It is always wise when entering into one of these arrangements to ensure that there are appropriate powers to bring the arrangement to an end if the freelancer brings the business into disrepute or breaches its equal opportunities policy.

For businesses who have not updated their equal opportunities policy, then the message is simple.  In these economic times, it is downright dangerous not to ensure that you have taken all reasonable steps to prevent discrimination. The keys to success include avoiding grey areas.

 For further information contact Ian Pettifer on 01452 509080 or ian.pettifer@tayntons.co.uk