UK: It's Just Not Cricket! What Constitutes Sexual Harassment And Discrimination?

Last Updated: 28 January 2016
Article by Gavin Macgregor

Workplace harassment of a sexual nature can manifest itself in a wide variety of behaviours, comments and situations.

The most recent high-profile example of such behaviour is the recent controversy surrounding West Indian cricket star, Chris Gayle's comments towards sports presenter Mel McLaughlin during a live interview for Australian television following his dismissal playing for Melbourne Renegades. During the interview, Gayle quipped to McLaughlin that he had deliberately got out just so he could be interviewed by the female presenter. His remarks: "To see your eyes for the first time is nice. Hopefully we can have a drink afterwards - don't blush baby" evidently made her feel uncomfortable and were described by his club as "completely inappropriate and disrespectful. They also fined him £4,900.

This recent controversy follows Sky Sports' crisis surrounding Richard Keys and Andy Gray's recorded sexist remarks in 2011 and John Inverdale's comments on the appearance of Marion Bartoli during last year's Wimbledon. The subsequent media storm has caused a heated debate as to whether the public reaction has exaggerated what was just some on-screen "playful flirting" or whether this was yet another example of sexism and objectification of women that is allegedly endemic in professional sport.

However, many commentators have suggested that the media is applying a double-standard when it comes to such behaviour, citing Maria Sharapova's infamous flirting with a journalist during a press conference as similar conduct in reverse. In Australia, defenders of Gayle have referenced the behaviour of a Channel Seven female weather presenter who approached a topless man exercising on the beach she was broadcasting from to flirt live on air and ask if he was "single".

Perhaps there is some merit in the arguments about hypocrisy? Nevertheless, despite the polarising opinions of viewers and pundits, the fact remains that in today's society, such comments cannot be tolerated in the workplace from either sex. Regardless of how they are intended, such behaviour opens employers up to the risk of being held vicariously liable for the unwanted conduct of their staff towards colleagues.

Gayle has recently apologised for any offence caused to McLaughlin in what he described as a "simple joke". On the other hand, Cricket Australia boss James Sutherland suggested the incident could amount to workplace harassment:"It's not a nightclub, and I think one of the things that perhaps hasn't dawned on everyone is it's actually a workplace".

The line between harmless flirting or 'banter' and harassment is often vague. However, Sutherland is quite correct – this incident occurred in a workplace, during working time and the reality is that such interactions can, and do, lead to costly Tribunal claims.

But what exactly constitutes "sexual harassment"?

Of course, discrimination and harassment is a problem not exclusive to the sporting world. It can occur in any working environment. Essentially, there are three types of sexual harassment at work.

Under the Equality Act 2010, sexual harassment involves 'unwanted conduct' of a sexual nature that has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the recipient. A Tribunal will objectively assess whether it was reasonable for a claimant to be offended by the conduct.

However, 'unwanted conduct' is not defined and can apply to a wide range of circumstances including verbal or physical conduct.  Conduct of a 'sexual nature' can apply to behaviour such as unwelcome sexual advances, touching, jokes of a sexual nature, sending explicit e-mails or displaying pornographic material.

Secondly, harassment can occur when an employee is treated less favourably by a colleague because they have either rejected or submitted to sexual advances by that colleague.

A third form of harassment can also be 'sex-related' where unwanted conduct occurs relating to the person's gender, which has the purpose or effect of violating their dignity or creating an unpleasant environment. That might include jokes, rumours or speculation surrounding an employee's sexual orientation or negative comments about a female employee who arranges flexible working hours in order to make childcare arrangements.

 How can employers prevent and mitigate sexual harassment claims?

Clearly, employers cannot control what their staff say and how they behave at all times either in the workplace or even outside of working hours when harassment can still apply, including online.

An employer stands the best chances of preventing such behaviour and defending any claims that might arise if it can demonstrate to a Tribunal that it has taken all possible reasonable steps to deter such behaviour. The following measures will assist your organisation or association  in doing so:

Maintain a Robust Anti-Harassment Policy – this should clearly, set out what constitutes unacceptable behaviour  and must be communicated to employees.

Provide Equal Opportunities Training – this should be delivered regularly to all staff, including new recruits and will help employees to identify and address inappropriate conduct when it occurs.

Treat Allegations Seriously - Address any potential sexual harassment complaints as soon as possible and appropriately apply your formal grievance and disciplinary policies if necessary.

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