The question of discrimination is in sharp focus at the moment and is an issue that HR professionals do not need to be told they must be ever alert to. Of all the issues in the workplace, discrimination can be one of the most damning for any business both in terms of reputation damage relating to recruitment and attracting new clients.

One particular danger area is that of workplace social activities when defences are down and banter is exchanged. Rebecca Hilsenrath, the chair of the Equality and Human Rights Commission, has flagged up a warning to businesses to ensure that their HR departments are training staff to be mindful of the risks of after-work events and the potential to unintentionally engage in behaviour that can be construed as sexual harassment or breach discrimination law.

The “banter” culture is well enshrined and frequently, if challenged the perpetrator’s defence of “it’s only banter no offence intended, he/she knows that it’s only a joke” is dismissively presented as an explanation. Or the staff member genuinely does not realise that their behaviour is unacceptable.

Gabriele Belli, managing partner, commented “nobody wishes to prevent staff from enjoying socialising with each other but there must be clear guidelines with regard to behaviour; it is not acceptable to target a colleague with overt sexual behaviour or discriminatory comments regardless of the intention – joke or otherwise.  The alcohol factor loosens tongues and facilitates comments and behaviour that can be totally unacceptable”.

As HR professionals will realise it is often individuals in senior positions who behave in an unacceptable manner at social events.  Frederic Michel-Verdier an executive director at IFM Investments targeted Nathalie Abildgaard, an associate, at an office party in Madrid commenting “’I know more about sex” and “I could teach you a lot of things” further commenting “if I were 50 years younger I would have been all over you” he then asked her to his hotel room for “some fun”.   Ray Kelvin of former CEO of Ted Baker resigned in the wake of a raft of sexual harassment allegations from forced hugging and massaging to making employees sit on his knee. Disturbingly, when employees complained to the Ted Baker HR department their concerns were dismissed as “…that’s only Ray…”  Accusations have also been made regarding Sir Phillip Green of Arcardia.

It seems that little has been learned since 2001 regarding unacceptable behaviour when Tullett & Tokyo, a prestigious City firm, appeared to collude in a culture of extreme banter and pranks where a Jewish man, Laurent Weinberger, was instructed to wear a Nazi uniform in an office running joke where whomever was late on a Friday was obliged to wear a costume of his colleagues’ choice as a forfeit. His refusal saw him downgraded and he resigned shortly afterwards; the ensuing case for racial discrimination and unfair dismissal revealed that the firm’s trading floor was rife with discriminatory practices from placing a skull cap on top of a screen whenever a Jewish person appeared, to forcing an Irish Protestant to wear a Papal outfit and a Welshman to wear a Bo-Peep outfit with highly derogatory nick-names directed at various individuals such as Jew-boy and Taffy Twat. The behaviour was brushed off as idle banter and horse-play, however, the Employment Tribunal saw it differently.

On the other hand, HR professionals must be fully aware that this area of employment law can be a particularly tricky minefield. In the case of former Royal Academy of Music lecturer,  Professor Francesca Carpos-Young who was summarily (and wrongfully) dismissed when the notes she sent to her students in an attempt to arm them as to the toxic “real world “ of orchestra life pointing out that they may expect that violinists to be referred to as “gypos” the brass section as “pub-goers” and the string section as “pond life” who were also “tea drinkers” and in general the orchestra may be referred to as “the boys”. Her sensitive students, who misconstrued her advice, posted the comments on social media resulting in Professor Carpos-Young’s immediate dismissal.  The Tribunal ruled that she was attempting to explain the derogatory terms that her students may encounter and was not making derogatory statements and that her comments were taken out of context.  It is always advisable to conduct a thorough documented investigation into every situation before embarking on an instant dismissal.

Rebecca Hilsenrath took the unprecedented step of writing to 400 organisations urging them to put in place robust anti-harassment policies making crystal clear that employees breaching the rules will face dismissal, regardless of the intention, including banter, pranks, social media contact, intrusive questions on an employee’s private life, rumour mongering, leering as well as touching and mimicry. She hopes that the guidelines, which include making it easier to make complaints about such behaviour, will eventually be enshrined in law for the protection of both the employees and businesses, preventing the conduct of an employee jeopardising the reputation and bank balance of the company.  Rebecca Hilsenrath has also made it very clear that companies are responsible for the behaviour or any action which falls ‘within the course of employment’, including at after-work drinks in the pub or leaving dos, that could be construed as discrimination or sexual harassment.

Legal Law Limited’s employment team has dealt with a number of workplace discrimination matters, some of which have been focused on the LGBT community which is also disproportionately targeted and wholly supports the creating anti-harassment policies and proving staff training to limit the risk of unintended harassment.