Fiona Martin answers your questions on the law relating to sexual orientation.
Q: One of my employees has complained of being harassed by a colleague in emails referring to him as ‘gay boy’. What do I need to do?
FM: To avoid being held vicariously liable for your employee’s behaviour - you are liable whether or not their actions are carried out with your knowledge or approval - you should fully investigate the complaint and the circumstances surrounding it. You should aim to identify reasonably practicable steps to prevent employees carrying out acts of this kind in the future. The law on sexual orientation defines harassment as:
- Unwanted conduct by a person on grounds of sexual orientation which has the purpose or effect of violating another’s dignity or
- Creating an environment that is:
- Intimidating
- Hostile
- Degrading
- Humiliating or
- Offensive
Q: I don’t think the individual concerned is gay. Can his complaint be justified?
FM: This is irrelevant as the Act covers conduct on the grounds of sexual orientation whether it is actual or perceived. However, a recent case did clarify that homophobic banter cannot be harassment where the employee is known to be heterosexual.
Q: Would sending emails constitute harassment in any case?
FM: The ACAS guidance indicates harassment may consist of intentional bullying, which is obvious or violent, as well as harassment that is subtle and insidious. In addition, harassment need not be intentional. For example, harassment could include nicknames, teasing, name calling or other behaviour which, while not intended to be malicious, is nevertheless upsetting.
Q: What should I do to investigate and what do I do next?
FM: Take a detailed statement from the complainant about the acts of harassment. Include:
- When and where they took place
- The individual’s response
- Details of any verbal or written reports to managers
Your investigations could result in one of two courses of action.
You find fault on both sides
For example, if the complainant has also been name calling or engaging in ‘banter’ which might show the nicknames were not unwanted conduct. In this instance, you might consider encouraging them to raise a formal grievance. An independent manager reviewing all of the evidence to decide whether to uphold their grievance would be an additional safeguard to ensure your internal procedures are fair and compliant with the statutory grievance procedures. This manager might then legitimately decide this behaviour does not constitute harassment. If this is the case, do remember that unprofessional workplace banter can still be offensive more widely within the business and should be discouraged.
You decide the harassment has taken place
In this case you need to decide if the severity of the behaviour warrants disciplinary action against the harassing employee and / or training (managers and employees). It is good practice to ask what the complainant wants you to do to stop the harassment. If you only intend to provide a warning, you do not have to go through the statutory dispute procedures. However, if the evidence shows the harassment was so serious you are considering dismissal, you need to comply with the statutory disciplinary procedures. If you need more time to carry out further investigations, such as interviewing other employees, it may be appropriate to suspend the harasser on full pay.
Whatever the outcome, it is advisable to have a policy on harassment to ensure employees know such behaviour is unacceptable and will lead to disciplinary sanctions.
See also: our sexual orientation discrimination page.
This article was published in The Argus in December 2008
The information in this article is provided as general guidance only. The law in this area is regularly subject to change, challenge and update. You should always check the up-to-date position and if appropriate seek further specialist advice.
