Banter in the work place: camaraderie or harassment? by Fiona Aitken (employment department)

Sky Sports this week ousted football commentators Andy Gray and Richard Keys after they made sexist comments about a female assistant referee. The naming and shaming of the pair has re-sparked the debate about when and how we ought to draw the line between banter in the workplace and unlawful discrimination.

In October 2010 the Equality Act was said to “signal a new era for discrimination law.” However, the question of whether it is better equipped do deal with situations such as those found in the Sky Sports studio – and let's face it many other working environments - is yet to be fully tested in the courts.

The difficulty lies in the many forms in which sexual harassment and discrimination can take. A comment or act found offensive by one may be perfectly innocuous to another. After all it usually depends on the circumstances in question and everyone has a right to decide for themselves what behavior they find acceptable or not. Legislation therefore cannot be overly prescriptive. On the other hand harassment in the workplace is not purely left to a judgment call.

Employers can be clear regarding a number of elements in the law and by putting into practice some basic policies they can make great strides towards protecting their employees and avoiding litigation.

Case law decided before the Equality Act 2010 came into force will still apply. Therefore, a single incident can be enough to constitute harassment (Reed v Steadman, 1999), and some conduct must be presumed to be unwanted unless proved otherwise. Further, the fact that the employee has tolerated conduct for years does not mean that it cannot be unwanted. (Munchkins Restaurant Ltd and another v Karmazyn and others, 2009).

Moonsar v Fiveways Express Transport Ltd (2005) demonstrates the danger of permitting a certain culture or environment in the workplace. In that case male colleagues downloaded pornographic images onto computer screens. Their actions were held to be discriminatory even though the Claimant was never shown the images and she had not made any complaint at the time. The Employment Appeals Tribunal found that this was treatment that would obviously undermine the Claimant’s dignity. It was therefore discriminatory.

From the alternative perspective the tribunal in Smith v Vodafone UK (2000) found a comment made by a male employee to a female co-worker who had a punnet of melon slices on her desk that she has “got some lovely melons there” was a corny joke. The tribunal held the remark was made innocently and did not affect the Claimant's dignity at work.

As these situations continue to occur there are those, such as Top Gear presenters Jeremy Clarkson and James May, that fear political correctness and employment legislation will have the effect of abolishing humour in the work place. While a line that continues to move is inevitably a difficult one to draw it seems Richard Keys said it all shortly after his resignation from Sky Sports: "Prehistoric banter isn't acceptable in the modern world. I accept that. We failed to change when the world has changed. It was wrong. I deserve to be battered."

Forecast changeable for retail property portfolios by Mark Newbold

Retail Week reports on whether the decision by HMV to downsize its property portfolio by 60 stores signals a more widespread move by retailers to reduce their commitments to bricks and mortar.

Although some retailers are clearly feeling the pinch and consolidating, and some of the secondary shopping centres and smaller high streets are suffering higher vacancy rates, it is not all doom and gloom.

There is optimism in the market in some quarters with some retailers and landlords remaining optimistic about continued growth for traditional retail.

Retirement age to be abolished by Richard Woodman

My employment colleagues – Gemma Ospedale and Helen Murphie – have been busy sending information out on the Government’s recent decision to abolish the Default Retirement Age of 65 from 1st October 2011.

Many of our clients have asked for help to review and revise their employment contracts and other human resources policies to ensure that they will not fall foul of the new restrictions and to navigate the transition arrangements for those reaching 65 before October.

If you would like a copy of the briefings or bulletins we have issued on this and related employment matters, please let me know rmw@royds.com

Our family and private client teams in Law Society's Probate Practitioner's Handbook

Patrick Hart, family partner and head of the Family Wealth department, is quoted in the sixth edition of the Law Society's Probate Practitioner's Handbook.

The topics on which he is quoted are:

* The integration of our private client, family and residential conveyancing teams
* The firm's expertise with particular groups of clients such as large family estates, international finance and business people, sports people, celebrities, media personalities, entrepreneurs, those with special religious needs and the LGBT community.
* Our private client and commercial lawyers presenting seminars in the Middle East in conjunction with a global bank.
* Offshore experience in Cayman Islands, British Virgin Islands and the Bahamas