Most workplaces do (and indeed probably should) have a degree of daily workplace banter between employees within the workplace. It’s usually part of the oil which keeps the machine running happily and smoothly. But when does the banter cross the line from a little reciprocal mickey-taking and verbal jousting to help the day go past into a serious and potentially expensive case of bullying and harassment? To most employees the distinction should be obvious. However, it would appear that may not always be the case.
The London Central Tribunal last week found in favour of a female City trader who earned £750,000 a year, in a sexual harassment and constructive dismissal case.
During the Tribunal, Svetlana Lokhova alleged that certain men at Troika Group UK, the London branch of Russian bank Sberbank CIB (UK) Ltd, had called her “bonkers”, a “chemically dependent minigarch daughter”, “crazy”, and “mad” and that such comments were made not only verbally, but by email. There was reportedly a suggestion in one of the emails that she needed to visit Nigerian tribesmen for sex to calm her down.
Unsurprisingly, the Tribunal made a finding that such comments were sexual harassment. To add insult to Ms Lokhova’s injury, the Tribunal found that the principal perpetrator, a Mr Longmuir, was not disciplined by his manager Paulo Zaniboni despite the latter’s awareness of what was going on. Mr Longmuir has since withdrawn the drugs references and left the company by what is delicately described as “mutual consent”.
Under the Equality Act 2010, an employee can bring a claim for discrimination if treated less favourably on the grounds of a number of protected characteristics, including gender. Though many of Mr Longmuir’s comments (mad, cokehead, bonkers, crazy) are “merely” insulting, enough of them had a gender element to tip the case from “ordinary” bullying (for which little remedy exists in practice) to gender-based harassment.
This case serves a reminder to employers that they should have robust equal opportunities policies in place and ensure that those policies are both communicated to employees and acted upon. It is important to:
- have in place an Equality Policy/Dignity at Work Policy, covering issues like “workplace banter” and what is and is not acceptable;
- communicate the policy and train employees on it; and
- enforce the policy by disciplining or dismissing employees where it has been breached.
If an employer can show that it has taken reasonable steps to prevent discrimination from occurring then it may even (though not many would) apply to the Tribunal to join the individual perpetrator of the discrimination into the proceedings if he is not already a Respondent. A policy will not achieve that by itself, but equally it is a steep uphill struggle to reach that point without one.
The damages award has not yet been decided upon in this case (the Press suggests up to £5m) but the clear failure to act even once the discrimination was drawn to Mr Zaniboni’s attention could result in an award for aggravated damages on top of injury to feeling and financial loss. One can feel a degree of sympathy for him, in that of her 22 allegations of discrimination, 19 were rejected, and it could well have been the case that her justified complaints about Mr Longmuir were lost in a welter of noise about other things, perhaps all the merely unfunny (as opposed to discriminatory) manifestations of the “fair wear and tear” of office life. We understand an appeal by Troika to be under consideration.