What’s said in the media
Moyes didn’t realise the mike was still on when he made those now infamous comments to BBC journalist Vicki Sparks. Moments earlier, she had asked him a challenging question about the match. A perfectly proper thing for a sports journalist to do you might think. So why did she laugh along with Moyes when he made that slap exchange? We’ll return to the legal significance of ‘laughing along’ shortly. Meanwhile the media storm seems to have blown over. Moyes issued a swift ‘deeply regret’ apology, Sunderland FC condemned his comment as “wholly inappropriate” and Sparks accepted his apology without making a formal complaint (as far we know).
There have been similar notable moments, now immortalised on YouTube. Who remembers David Cameron’s “calm down dear” retort in the House of Commons to Shadow Chief Secretary to the Treasury, Angela Eagle? Cameron’s comment were widely criticised by many as sexist and patronising but brushed off as “a joke” (based on Michael Winner’s TV advert) by a Number 10 spokesperson.
But what about when women give it back? Was the presenter of R4’s Woman’s Hour, Jane Garvey, being sexist, patronising and derogatory towards men when she described the football profession as being full of “little big men”?
What discrimination law says
The words “sexist” and “patronising” don’t appear under Section 26 of the Harassment provisions of the Equality Act 2010 but “degrading” does. (This is different from the form of harassment we find under the Protection for Harassment Act 1997). Here is a slightly shortened version of the Equality Act’s definition of harassment:
- Because of a person’s “protected characteristic” of age, disability, gender reassignment, race, religion or belief, sex or sexual orientation;
- They are subjected to unwanted conduct;
- That has the purpose or effect; (my underline);
- Of violating their dignity;
- Or subjecting them to an intimidating, hostile, degrading, humiliating or offensive environment.
You can see from that definition that if an employee made the sort of comment to other members of staff that Moyes, Cameron or Garvey made you could well have a discrimination claim on your hands.
So what about the excuses putative harassers frequently make for their unlawful conduct at work? You can give short shrift to the ‘I can’t be racist/homophobic, I have lots of black/Asian/ gay friends’ nonsense. A person’s social circle will not rescue them from an unlawful breach of the law.
Neither will saying I didn’t mean to upset anybody. Note the underline from above; it is the purpose or effect of the conduct on the person harassed that the courts will take into account.
(That said there is another sub clause in the Section 26 definition that provides that the conduct will only constitute harassment if, in the perception of the complainant and other circumstances of the case, it is reasonable for it to be so. The so called “hypersensitive” claimant has been the subject of much case law but that must be a subject for another day).
And finally we come to the fact that many people who are subjected to offensive comments and behaviour simply pretend not to mind. The courts do recognise that employees, often in a weaker power position than their harasser, will not want to rock the boat. Note the other underline above: for the conduct to constitute harassment it must be unwanted. In Munchkins Restaurant Ltd and another v Karmazyn and others UKEAT/0359/09) the Employment Appeal Tribunal (EAT) held that the fact that an employee has put up with the conduct for years, or joined in with "banter", does not necessarily mean that the conduct is not "unwanted".
Furthermore there is no need for the victim to have already made it clear that the harasser’s conduct is unwanted in order for it to constitute harassment. In Reed and another v Stedman  IRLR 299, a case under the Sex Discrimination Act 1975, the EAT held that a one-off incident could constitute harassment, and that some conduct must be presumed to be unwanted unless proved otherwise.
There is therefore no right for would-be harassers to "test the water" with impunity if their conduct is serious enough to reasonably be considered as harassment.
Please contact our employment solicitors on 0808 168 5550 or on firstname.lastname@example.org to discuss how these issues might affect you or your business.
News Update: The day this blog was posted we understand that David Moyes has been charged by the FA with the allegation that his remarks to Vicki Sparks were improper and/or threatening and/or brought the game into disrepute.