Employers and HR professionals must be constantly aware that inappropriate terminology and "joke" comments directed by senior staff towards their subordinates should be swiftly dealt with when discovered.  If sexist, ageist or homophobic terms are used, even if intended to be humorous, it must be stamped out or risk the situation escalating to the degree that the organisation finds that such comments feature in a claim in the employment tribunal.  

A junior financial analyst in her first position at Barclays Bank found that her line manager continued to refer to her as a "bird" despite the fact that she made it clear that she found the term inappropriate. The financial analyst eventually made a claim at the employment tribunal where the judge found that the use of the word "bird" to refer to women by her former line manager was an example of "sexist language."  Furthermore, his "rather puerile attempt to be ironic" only ceased after "the Claimant was sufficiently blunt that the message hit home." The amount of the award will be decided at a future date, however, the bank may find that in order to deter future sexist behaviour in other organisations it will be subject to a high award to make an example of bad practice. Managers and executives must be reminded that derogatory comments or even comments made in jest, in certain circumstances, can form the basis of a claim at the employment tribunal.

When dealing with procedures that have a serious impact on the employee that the process must be undertaken with meticulous attention to the law, HR managers must be certain that all participants involved in disciplinary or redundancy procedures are conscious of the fact that they must confine themselves to comments that are germane to the matter in hand.  The lawyers in Giambrone & Partners' employment law team are keen to emphasise that personal remarks about the appearance or performance of an employee in meetings involving such procedures should only be made if relevant to reasons directly related to the issues under discussion.  Inappropriate comments can be concluded to be discriminatory and result in the outgoing employee making a claim for unfair dismissal.

A senior marketing director, Ms. Shipp, was dismissed whilst on maternity leave successfully claimed unfair dismissal, pregnancy/maternity discrimination, indirect sex discrimination and breach of contract following her dismissal during the course of her maternity leave when she refused to accept a lesser role which carried a £20,000 pay cut.  Furthermore, comments made in connection with Ms. Shipp's pregnancy were found by the tribunal to be "humiliating and degrading".  On learning of her pregnancy, a senior executive asked her when she had stopped using contraception and also asked her how she thought her pregnancy would affect her long-term career prospects.  In the same meeting, the chief executive remarked that they should "put a wager" on how much weight she would put on during her pregnancy.  The tribunal found Ms. Shipp was the victim of a "serious case of maternity discrimination" and was treated with a "stark difference" in comparison to men in the organisation.  The tribunal concluded that the only reason for the difference was that she was on maternity leave.

Giambrone's employment lawyers point out that redundancy should not be an exercise in removing employees that for any reason are regarded as a liability or less productive due to such circumstances as pregnancy or disability.  Our employment lawyers warn that any attempt to create a situation that forces an employee out of the company and is found to be in contravention of the Equality Act 2010 creates a significant risk to the business and must be avoided at all costs.  

Redundancies can be complicated and difficult for both employer and employee and may not always be straightforward. Employers and HR managers should be completely clear with all employees, including the senior executives as to how the process should be dealt with in meetings between the employer and employee.  The selection criteria should be transparent and measurable. 

Treating employees fairly in all circumstances can never be a cause for concern and any inappropriate attitudes or comments should be seen to be dealt with swiftly and appropriately.

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.