By Max Clarke

In light of the recent Sky Sports harassment debacle, Berg Legal discuss the various legal issues raised by Mr. Gray’s behaviour, offering some to employers on how best to avoid such situations in future.

During Liverpool’s game against Wolves on 22nd January 2011, Sky Sports presenters, Richard Keys and Andy Gray, were recorded saying about the lineswoman, Sian Massey, that “someone needs to go down there and explain the offside rule to her.”

The presenters had thought that their observations on Sian Massey and her alleged understanding of the offside rule during the match were being made in private, but their microphones were still on. A transcript and tape of the conversation were leaked to the media.

What if something like this happened, for example, where a female employee overheard her male colleagues making sexist remarks about her or about women generally, thinking they would not be overheard? That behaviour would be likely to amount to sexual harassment under the Equality Act 2010 and could lead to the female employee being able to bring a successful Employment Tribunal claim against her male colleagues and their mutual employer.

Such sexist remarks do not have to be directed at an individual nor do the perpetrators need to have intended their comments to be heard by anyone else. Provided that the offended employee can show that a colleague engaged in unwanted conduct of a sexual nature which had the purpose or effect of volating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, then she can bring a sexual harassment claim.

Furthermore, anything done by an employee in the course of their employment is treated as having also been done by their employer, regardless of whether the employee's acts were done with the employer's knowledge or approval.

However, there is a defence available to an employer if it can show that it took all reasonable steps to prevent the employee from doing the discriminatory act or from doing anything of that description.

Reasonable steps would usually include:

• Having and implementing an equal opportunities policy and an anti-harassment and bullying policy, and updating those policies regularly and as necessary.

• Adequately implementing those policies through training, so that employees are fully aware of the policies and their requirements. This training should be provided to staff of all levels and managers should be trained in how to deal with discrimination issues, if and when they arise.

• Taking steps to deal effectively with complaints, including following disciplinary procedures if required.
Barney Francis, managing director of Sky Sports, confirmed last week that immediate disciplinary action was being taken against Richard Keys and Andy Gray and that they were being suspended from involvement in Monday 24th January night’s live broadcast. It has now emerged that Andy Gray has actually been sacked from his job with Sky following revelations about another comment of a sexual nature, this time made to a colleague at Sky. It remains to be seen whether this red card offence will call full-time on his career in sports broadcasting.

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