Articles
A Gray Area?
What does the sacking of Andy Gray tell us about the current state of employment law?
Few, cannot have been aware of the furore over sexist remarks made by Sky's Andy Gray and Richard Keys and their eventual departure; Keys by resignation and Gray dismissed for gross misconduct. The law itself is clear enough; the definition of harassment in the Equality Act 2010 means that employees can complain of behaviour they find offensive, even if it is not directed specifically at them and the complainant need not possess the relevant protected characteristic themselves. So it appears to have been in this case, the originally disparaged individual, referee Sian Massey, made no complaint. Gray's further leaked behaviour, of suggestive comments to fellow presenter Charlotte Jackson, did not provoke a complaint from her either. Was Sky's reaction, then, extreme in the face of such workplace banter?
The problem for employers is that, although these incidents occurred off-air, they were still in the course of Gray's (and Key's) employment and, as such, Sky Sports could be held vicariously liable for their actions. Employers cannot afford to be seen to be tolerating harassment and Gray's dismissal sends a clear message that this is the case. So, all well and good.
Except, of course, that Gray may well feel aggrieved by his treatment; as Sky did not dismiss Keys, then Gray may feel he suffered from inconsistent treatment. Further, he may also feel the action taken was disproportionate, a proper procedure was not followed, and his long service, prior clean record and an apology should have swayed the decision from dismissal. Only those involved in the actual incidents will know the answers to these questions, but the possibility does exist for action by Gray.
So how can employers minimise these risks? By implementing effective procedures, with adequate training for employees and ensuring that any complaints (bearing in mind these need emanate from the perceived ‘victim') are dealt with properly and consistently. The risks of subsequent litigation cannot be entirely eliminated, but they can be reduced to acceptable levels. It is worth remembering that in this area, the law is very, very protective.
One unintended consequence of the whole affair appears to have been to advance the cause of equality in football: since the affair first broke the FA report that they have been inundated with enquiries from women interested in becoming football match officials!
For more information on the above or for advice on any other employment issue please contact our employment department on 020 7354 3000 or e-mail employment@colmancoyle.com
Date published: 17th February 2011