However harmonious a working environment, there will inevitably be occasions when disagreements or possibly even explosive arguments occur between colleagues. But what if this results in insults being exchanged -and what of these refer or allude to a colleague’s personal characteristics, such as their sex, for example? Would such comments necessarily be discriminatory due to their subject-matter ? This is an issue in the case of Warby v Wunda Group plc which is to be considered by the Court of Appeal next week and, depending on the outcome, could prove significant for employers. Naeema Choudry, partner at global law firm Eversheds, comments:
“The Court of Appeal is due to hear an interesting case next week which could help determine the extent of employer liability for insulting remarks uttered by employees. The case in point related to a female employee who, in the context of a heated argument with her employer over pay, was accused of lying. One such allegation related to the employee’s claimed miscarriage earlier in the year, which the employer called in to doubt. The employee found the employer’s accusation distressing but the question then arose whether the employer’s reference in such a way to a uniquely female matter constituted sex discrimination and harassment?
“Discrimination law in the UK is well-understood by now as protecting employees from disadvantageous treatment relating to protected characteristics such as their sex, race, disability, etc. Unwanted conduct related to such protected characteristics will also constitute harassment if it creates an intimidating, hostile, degrading, humiliating or offensive environment for the individual (whether or not intended). The important question in every case is the individual’s perception and where to draw the line between unreasonable or unpleasant conduct at work and conduct which is harassing or discriminatory in nature. However, making that distinction isn’t always as easy as it sounds, particularly for employers who may find themselves on the receiving end of a discrimination complaint.
“The decision by the Court of Appeal, which is expected in the new year, should help to clarify whether the use of words in the workplace which refer to a protected characteristic are inherently discriminatory and, in causing offence, also qualify as unlawful harassment. Previous cases have sought to preserve a discretion to the employment tribunals, encouraging them to look to the context of the language used. For example, calling someone a name in reaction to them spilling hot coffee on you should be construed quite differently from an unprovoked insult, due to the context. However, these cases have not concerned claims of personal attack, such as accusing an employee of lying over pregnancy. This calls into question whether motive does or should matter in such circumstances, if a colleague’s conduct causes offense and their words relate to an issue of discrimination? It will be interesting to see whether the Court of Appeal will finds that it does and that the accusation of lying over a miscarriage, was merely used as an illustration of her alleged lying and was not of itself discriminatory.”
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