October – the month of Halloween – accidentally coincided with the unearthing of Donald Trump’s horror tape containing grotesque comments about women. The fact that they were made in a 21st-century US workplace should send chills down the spines of HR practitioners on both sides of the Atlantic. Equally shocking, from a labour-law perspective, was his attempt to downplay his comments as ‘locker room talk’.
The defence tactic of trivialising acts of alleged sexual harassment is, of course, not uncommon. Employment tribunals often hear respondents asserting their conduct was not ‘unwanted’ by the claimant or ‘sufficiently serious’ to satisfy the sexual harassment test in the Equality Act 2010, but was just harmless banter.
Case law has developed a fairly low threshold for meeting the ‘unwanted conduct’ test. It does not have to be directed at the claimant, and can be a single act or an omission such as failing to intervene in office gossip. The test of ‘seriousness’ is a question of fact and degree, and grey areas exist; for example, where claimants engage in inappropriate banter which they later say went too far.
It is a common misconception that discrimination has to be a conscious decision. Trump’s recent attempt at damage limitation by stating “No one respects women more than I do” illustrates this. Discrimination can be an unthinking act or omission on the part of the employer, for example, presuming that male employees can take more overseas business trips, or that women should attend sales pitches in heels. HR plays a crucial role in educating workforces on how easy it is to stray into unconscious sex discrimination, and can proactively combat such behaviour with diversity training or by allowing employees to learn by their mistakes instead of hushing them up.
However, there is plainly a tension for employers in developing a relaxed working environment, in which colleagues can be friendly with each other, without inadvertently creating fertile ground for offensive behaviour resulting in employment claims.
Job ads proclaiming a “strong corporate culture” are recruitment buzzwords for attracting millennial talent and the practice of throwing colleagues into a ‘crab bucket’ and watching them clamber for success as favoured in The Apprentice is viewed as passé. The newest talent pool looks for vision and values that encourage team behaviour and promote wellbeing and happiness. A strong corporate culture now includes a collegiate working environment, formed from pulling together in times of crisis. But where strong friendships (or other relationships) exist, the boundaries of acceptable workplace behaviour can become blurred.
Employers can avoid liability if they can show they have taken all reasonably practicable steps to prevent employees committing acts of unlawful harassment. A clear and consistently applied equal opportunities policy, commitment to diversity training, and a comprehensive complaints procedure all demonstrate that an employer has taken such steps. Where unacceptable behaviour occurs, organisations should act promptly and consistently, and send out a clear message that it will not be tolerated, irrespective of who is involved.
While it is impossible to eliminate the risk of a renegade worker who is aware of the rules but chooses to operate outside them, employers can use this ‘reasonable steps’ defence to demonstrate they consciously acted to prevent such behaviour.
The challenge for employers is eliminating permissive ‘male only’ spaces from the workplace, whether it’s in a meeting after hours in the pub or on a company golf day. Much is being done to improve representation of women at board level in FTSE companies and address the risk of boardrooms being seen as locker rooms with leather-backed chairs. From April 2018, the talent pool will have access to bald percentage figures which unequivocally show employer commitment to, and success at, tackling gender inequality, because UK businesses employing 250 employees or more will be required to publish their percentage gender pay gap. The regulations are specifically intended to shame corporates with a poor gender equality track record, such as low female representation at senior levels or an over-representation of women at the lower-earning end of the pay scale.
Although the scent of cigar smoke has gone from boardroom, Trump’s comments illustrate that the toxicity of gender discrimination may be hard to expunge. The message to UK employers could not be clearer: lock up the locker room and throw away the key.
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