Gary Lineker's recent comment on Match of the Day about two colleagues causes stir online.
In case you did not hear it, Lineker quipped that it had been a "real hair raising start to the season... unless of course you are Alan Shearer and Danny Murphy". For those not familiar with Premier League alumni, I confirm that Shearer and Murphy are not as blessed with hair as they were with athletic prowess.
Whilst Lineker's specific comment itself may not trigger discrimination liability for himself or the BBC due to the fact that one would struggle to connect the comment to the pundits' age, gender or any disability etc. (subject to the baldness being caused by a medical condition such as alopecia), it does serve as a timely reminder about "banter" in the workplace and the potential pitfalls of it.
Here are my 5 top tips to note in relation to workplace banter:
- It can form the basis of a discrimination claim if the comment or action is related to age, disability, gender, race, pregnancy etc. If such claim is pursued in a Tribunal, compensation awarded is uncapped and can therefore be significant.
- It can still be unlawful even if the purpose was not to cause offence if the consequence was that it had that effect. This means that an employee raising the "It was just a joke" justification will not be a defence.
- Even if the comment is not related to age, gender etc (as may be the case in relation to Mr Lineker), banter could still amount to a breach of an anti-bullying and harassment policy and may be deemed to be misconduct. This would mean that the culpable employee could still be subjected to an internal disciplinary process which could lead to dismissal.
- An employer can be vicariously liable for the actions of their employee. This means that anything done by the employee in the course of their employment (making offensive comments in this case) is treated as having also been done by the employer. Therefore, it is important that employers take "all reasonable steps" to prevent the discrimination occurring as this can be used as a potential defence by the employer. Such steps may include regular training on bullying and having policies outlining these issues.
- A failure by an employer to deal appropriately to a complaint of harassment by an employee could entitle that employee to resign and claim constructive dismissal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.