In January 2011 the remarks of football commentators Andy Gray and Richard Keys sparked a nationwide debate over where the line should be drawn between harmless workplace banter and inappropriate sexist behaviour. When thinking they were off air, the pair made a jibe about a female assistant referee, Sian Massey, not understanding the offside rule. Thereafter, evidence came to light of another incident in December 2010 where Andy Gray made a suggestive comment and gesture towards a female presenter, Charlotte Jackson, and Richard Keys laughed. This incident led to the dismissal of Andy Gray and resignation of Richard Keys.

While there seems to be a general consensus that the actions were offensive, there is a diverse range of opinion on the limits of appropriate workplace banter, and what the sanction should be when someone oversteps the mark. We look at how the law would apply and what employers can learn from this case.

Were the actions legally offside?

The Equality Act 2010 prohibits harassment related to each of the protected characteristics covered by the legislation, except marriage and civil partnership and pregnancy and maternity. It also prohibits sexual harassment. The behaviour and comments of the two football pundits would amount to conduct of a sexual nature (the microphone incident) or related to gender (the comments concerning Sian Massey and later Karren Brady), which could well be found to have the purpose or effect of violating another person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment and therefore amount to unlawful harassment.

Looking first at the incident in December 2010, Andy Gray's comments and actions were clearly of a sexual nature. The fact that Ms Jackson reacted to the comments by ignoring them and staring straight ahead is a strong indicator that they were unwanted. The off-air comments concerning Sian Massey's ability to understand the offside rule are obviously related to her gender. While the purpose of any of the actions and comments could be disputed, it seems likely that they could have had the effect of creating an environment that was intimidating, hostile, offensive or degrading. The anti-harassment provisions in the Equality Act also allow for a person to be a victim of harassment in circumstances where the comments are not directed at them and the complainant need not possess the relevant characteristic themselves. So, even if Ms Jackson had joined in with the "banter" and Ms Massey was not bothered by the overtly sexist comments about her abilities, another Sky employee (whether male or female) who was offended could make a claim against Sky for unlawful harassment.

Third party harassment

The tribunal in the case of Martin and others v Professional Game Match Officials Limited (PGMOL) held that assistant referees are not employees of PGMOL, so it is unlikely that it could face liability because of the actions of Sky's commentators. However under the Equality Act, employers are liable for any persistent harassment of their employees by third parties. This liability will arise if a third party harasses the employee while they are at work. A "three strikes rule" applies, so that the employer must know that the employee has been harassed while at work on at least two other occasions by a third party (it need not be the same third party each time) and, if so, will be liable if harassment occurs on a third occasion. Finally, the employer has a defence, and will not be liable, if it has taken reasonable steps to prevent the harassment occurring.

If Ms Massey had been a referee, or if another employee of PGMOL had been subjected to similar comments and they had suffered harrassment on two previous occasions, PGMOL may well have found itself liable for that harassment unless it could show it had taken reasonable steps to prevent it. One of the steps taken by PGMOL was to withdraw Ms Massey from her next match. While it is likely that this response was agreed with Ms Massey and was well meaning, the common reaction of removing a harassed employee from their duties will not always be suitable and should be considered with at least a measure of caution. In this case the removal of Ms Massey from one match was likely to have been influenced by the desire to avoid additional media attention and so was probably appropriate in the circumstances. However, employers should consider each case on its merits and look at methods of protecting workers from harassment that do not cause a detriment to the individual concerned. Ill thought out, albeit well meant, responses could in themselves lead to claims of discriminatory treatment.

What steps should employers take?

  • Put in place or review equal opportunity and anti-harassment policies and make sure employees are aware of their rights and obligations. Employers should ensure that such policies include a mechanism for complaints to be made about any perceived harassment.
  • Offer training to staff on equal opportunities and harassment.
  • Investigate any allegations of harassment sensitively and confidentially where possible, taking account of everyone's rights and following the relevant harassment or grievance procedure. Disciplinary action may also be required against the perpetrators. Even where comments or actions amount to gross misconduct, this does not justify dismissal without fair process being followed. It appears that Sky did not follow a fair, or any, procedure. It is reported that it has now reached a settlement with Andy Gray over his dismissal.
  • An employer can be held vicariously liable for acts of an employee who is acting in the course of their employment whether or not it is aware of their behaviour. An employer will minimise the risk of, and provide a defence to, any claims if it takes all reasonable steps to prevent the behaviour, which would normally include taking at least the steps outlined above.
  • Remember the duty to prevent employees being harassed by other members of staff or third parties. Employers should carry out a risk assessment in relation to potential exposure of staff to third party harassment (and vice versa) and review and update policies and training as required.