Beware of the law - some ‘banter’ can go too far

Marion Konczak
Marion Konczak

BAE Systems was landed with a six-figure compensation bill after a worker’s case was upheld. DAVID NOWELL reports on the perils and pitfalls of employment law

An employment law expert today spelled out the dangers of falling foul of sexual discrimination legislation.

Gordon Turner

Gordon Turner

And he warned employers against “digging their heels in” if they knew they were wrong.

His comments came after a BAE Systems manager’s comment to a secretary that “women take things more emotionally than men” cost Britain’s biggest arms manufacturer £360,000.

BAE Systems argued the law had gone mad and attacked the payout to Marion Konczak for “a single sexist comment” as “an affront to justice”.

Mr Turner, of Gordon Turner Employment Lawyers, said: “Awards of this size are very rare. Discriminatory comments would normally come under the heading of injury to feelings and a one-off comment of this kind would attract a relatively low award.

“Women take things more emotionally than men, while men tend to forget things and move on.”

“I have seen much more offensive ‘one-liners’ result in compensation of under £1,000. The top award for injury to feelings, where there has been serious medical consequence is around £30,000.

“It is not so much the comment here as the surrounding circumstances. Most employers make the mistake of digging in and going into chronic denial. This then leads to a breakdown in trust and confidence and a discriminatory constructive dismissal which is why the award here is so high.

“Reference to a ‘last straw’ normally means that there has been a sequence of events. The term is normally used in constructive dismissal claims, where the employee resigns in response to discrimination.”

BAE was working on a big project for the Royal Saudi Air Force when Mrs Konczak complained that she had been “bullied and harassed, including sexually”.

But her line manager later told her that “women take things more emotionally than men, while men tend to forget things and move on.”

That proved the “final straw” for Mrs Konczak who went off sick with stress from her £22,000 a year job and was dismissed in July 2007, aged 53.

She took BAE Systems (Operations) Ltd to an Employment Tribunal which upheld the single complaint of sexual discrimination relating to the manager’s comment.

After a marathon legal struggle, Mrs Konczak was awarded £360,178.60 compensation in October 2014, the payout amounting to more than 16 times her final salary.

BAE challenged the award, describing it as “grossly excessive” for what happened to her.

But her lawyers said the manager’s comment “pushed her over the edge” into a psychiatric breakdown which ruined her working life.

Three judges at the Court of Appeal in London backed Mrs Konczak and rejected BAE’s complaints.

Mr Turner advised the following Dos and Don’ts for Employers

• Check your policies and procedures are up to date

• Make sure you have proof that workers’ attention has been drawn to them

• Have equal opportunities training

• Investigate complaints quickly

• Take proactive steps: management instructions to staff about necessary standards, full and frank apologies – all go down well at tribunals

Mr Turner said: “Employers can easily limit exposure to discrimination claims (but they rarely do). Training and guidance to staff on Equal Opportunities can offer a complete defence (the ‘reasonable steps’ defence). Instead of digging in, employers should deal with this kind of issues head on. Leading cases confirm that a genuine apology or other attempts, such as training, to deal with the hurt, ends the discrimination.

“If an employee stays in employment without protesting for too long after the incident they can be seen to have waived the breach of their rights so it is important to set out the case in writing.

“But if this kind of incident takes place the best advice I can give to employers is to take advice and eat humble pie as quickly as possible!”.

He also advised on the Dos and Don’ts – Office Banter .

While humour is essential for a happy working environment, certain topics are generally explosive from a legal point of view. These are called ‘protected characteristics’:

Sex ; Pregnancy and Maternity absence ; Race ; Religion ; Disability ;Sexual orientation .

“Harassment has a specific legal definition and banter is likely to be discrimination if it is ‘unwanted conduct’ relating to these characteristics which has the ‘purpose or effect of violating a worker’s dignity’ or which creates a hostile environment. “Where an employee has joined in the banter s/he may struggle to establish the ‘unwanted’ element but like for like comparisons are needed. “I once acted for an employee who received a large payout for truly offensive anti-Semitic banter which made cruel jokes out of the Holocaust. The employer’s attempt to suggest that the employee was ‘asking for it’ as she had been in the loop on some puerile seaside humour emails simply made things much more expensive for the employer.

“There are two things to think about: (a) is the conduct likely to upset the work and (b) whether it is reasonable for the complaining worker to be offended.

“So, the Law probably won’t protect the hyper-sensitive worker but generally, a tribunal will be more interested in the complainant’s view point than the insensitive manager or other worker!”