Discrimination and Banter in the Workplace

The corporate culture of yester year now have far greater legal implications for you as an employer when once asked what a client’s maternity policy was, and the reply being – “we use condoms”, that sort flippant tomfoolery that may once of been marginally amusing, is certainly a recipe for disaster.


The behaviour of one’s employees in a workplace not only in the physical office space is exacerbated by the virtual reality that most it not all employees inhabit on a regular basis – the dreadful social media.


For example, banter in the office may not be perceived as banter by another employee if the banter offends, humiliates degrades someone who has a protected characteristic or is even perceived to have a protected characteristic – allowing them to pursue a claim in the Employment Tribunal whilst remaining employed.   If one of your employees is behaving in a manner that is causing offence, even if what is being said or done could be constituted as humorous, if a person offended does really take offence it can lead to a massive amount of full management time, not to mention a good slice of the profits if a claim is made and is ultimately successful.


What most businesses do not fully appreciate is that whilst the Equality Act 2010 provided protection to employees from discrimination in the workplace, it also provides a statutory defence for employers.


As most people are aware employers are vicariously liable for the acts and omissions of their employees (as this arena is being extended hugely be technology and our virtual world).  However, the defence in section 109(4) of the Equality Act 2010 states as follows:-


“In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A—

(a) from doing that thing, or

(b) from doing anything of that description.”


To show that all reasonable steps have been taken to prevent the danger of (and costs of defending) potential discrimination claims, employers are advised to have rigorous anti-discrimination policies in place, backed up by training programs and seminars as well as robust grievance procedures in their staff handbooks.


Employers who do this and have a paper trail of this, ensuring each employee that attends signs a declaration stating they not only attend but understood the purpose of the training, are much less likely to find themselves involved in a discrimination claim.


It is however not enough to have a policy in handbook in an office somewhere – the employer needs to be seen to be actively re-enforcing their views on discrimination and reminding employees what constitutes as discrimination and the consequences of anyone found to be involved in such behavior.


This effectively means that if a claim is brought it would be against the offending employee with the employer having a statutory defence.


To discuss this or any other legal issue that should arise be it on contracts being entered, claims being made or money that is owed, please feel free to give Giles Ward a call on 0113 245 0852 or contact him at either giles.ward@milnerslaw.com or @milnersgiles on a no charge and confidential basis or Jodie Hill on 07850644426 orjodie.hill@milnerslaw.com or tweet and follow @Milnersjodie for employment updates as they arise.

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