The furore over offensive comments of a sexual nature made by Richard Keys and Andy Gray concerning assistant referee Sian Massey highlight the serious consequences for any employee who engages in legally liable conduct for themselves and their employer, according to Paul Johnstone of Muckle LLP.
“”In situations where any employee commits an act of gross misconduct or behave in a way which amounts to a fundamental and repudiatory breach of their contract of employment an employer is legally entitled to terminate that contract with immediate effect without payment of any compensation whatsoever. It is often the case that where some form of behaviour which is offensive to a work colleague that the person who is the recipient of the comment or the object of the unwanted attention will raise a formal complaint and allege that harassment and/or discrimination has occurred.
However, in this case there is a further layer of complexity. Even if no formal complaint was made by Sian Massey, Keys and Gray’s employer (Sky Sports) would still be under a legal duty not to allow such behaviour to continue because under Equality Act 2010 it is now possible for harassment claims to be brought by individuals within the workplace who are not, themselves, the subject of the offensive comment or behaviour. Therefore, it is possible for a bystander or third party to make a complaint that they believe that they have been harassed by something that is said or done by a work colleague which has nothing whatsoever to do with them directly. This may help to explain why Sky Sports has acted so decisively and so quickly by sacking Gray and disciplining Keys, which lead to his resignation.
Because Sky Sports operates as a broadcasting “”service provider””, this case raises an interesting possibility as complaints being made by members of the public in relation to the comments of a sexist nature made by TV presenters could result in a broadcaster having to answer to the broadcasting standards regulating authority, Ofcom, for failing to comply with legal obligations under the Equality Act 2010 which relate to the prevention harassment and discrimination in the provision of its services.””
Paul Johnstone is an employment partner for Muckle LLP and a member of the Networking for Change Steering Committee which works closely with Equality North East to promote best practice on equality and diversity in our region. Our employment team regularly advises on equality and diversity issues and the practical application of the law to their employees, from the first steps of recruitment to the ending of any employment relationship.
For further information call 0191 211 7936 or alternatively email us at [email protected].