Sex Discrimination and the cost of a single remark

The result of sex discrimination: We’ve all made comments at work we wish we could take back. But what if those remarks caused someone such distress that they had a mental breakdown? And what if the remarks were made in relation to a legally protected characteristic – gender?

You might think larger organisations would have a handle on this kind of behaviour. However, arms manufacturing giant BAE Systems were fined £360,000 for a single sexist comment. This blog outlines how this comment was really the tip of the iceberg and what you can do to avoid making the same mistakes in your business.

The Case
Marion Konczak had complained of bullying and sexual harassment, by four male colleagues to her line manager. She was moved to another role but when this didn’t work out she was asked to return to her old job working alongside the four men.

Konczak told her manager that she couldn’t do this because of the bullying and harassment history. Her manager responded with a comment about women taking things ‘more emotionally than men who tend to forget things and move on.’

Before this point Konczak had felt ‘dispirited and demoralised’ but this remark made her feel she wasn’t being taken seriously. It was the final straw that tipped her into depression and a period of sickness absence. She was dismissed in July 2007 and was unable to work for 11 years.

The Ruling
The Tribunal rejected 15 other sex discrimination complaints but found the comment by her manager constituted sex discrimination. They also found her dismissal to be unfair and an act of victimisation.

The sum awarded was so large because it took account of the preceding incidents which were deemed to have pushed Konczak to the edge making her vulnerable. The manager’s comment was the final straw.

What BAE Systems Got Wrong And How To Get It Right
Respond to Bullying and Harassment Claims
Regardless of whether the earlier behaviour Konczak experienced was illegal or not, it made her feel uncomfortable enough that BAE Systems felt bound to move her to another role. Having a bullying and harassment policy in place would have guided HR and managers through what to do and how to react. So far, so good.
Don’t Ask A Victim to Work With the Same People Again
By asking Konczak to work with people she had accused of harassment, the manager was insensitive to her concerns. In a company the size of BAE Systems, it should have been possible to find an alternative position.
In smaller businesses, moving people’s desks can be an effective way to separate warring parties. Keeping the lines of communication open will help everyone to feel heard. And ensuring all parties are clear that they must behave professionally will prevent a repeat of any upsetting comments.
Know Your People – And Act Accordingly
What’s bullying and harassment to one is a remark that can be easily brushed off to another. In this case, as well as making a sexist comment, the line manager missed the impact the situation was having on Konczak.
In summing up, the Judge said, “the basic rule is that a wrongdoer must take his victim as he finds him, eggshell personality and all.” This means line managers need to focus on two things:

1. Whether what was said concerned:
   • a protected characteristic, like race, age or religion
   • a non-protected characteristic, like ginger hair, height or weight
2. How the comment was received and the emotional state of the individual receiving it

Comments about protected characteristics place businesses at risk of a legal case if, as in the case of Konczak vs. BAE Systems, the appropriate steps aren’t followed. Any case where a protected trait is involved should ring alarm bells and mean you tread very carefully.
The ruling also underlines managers’ responsibility for considering and ensuring the mental health of employees. The crux of the BAE case is that the manager failed to spot the seriousness of the situation and to respond accordingly.
Changing individuals’ behaviour is not a simple fix. But you can put training and awareness programmes in place to help. Ensure your managers know how to listen, what to listen for and how to act in similar situations.
Develop a Culture of Equality And Safety For All
Allowing office banter about non-protected characteristics would make your business an unpleasant place to work for many individuals. And it would also be difficult for them to speak out if the behaviour appeared to be condoned at the top.
Go beyond the letter of the law and ensure that people feel able to speak out when any comments make them feel uncomfortable, not just those relating to protected characteristics.
Be prepared to lead from the front by challenging inappropriate behaviour publicly. This will help to create a safe place where your employees enjoy doing their best work as well as reducing risk for your business.
Bullying and harassment, sex discrimination, victimisation and mental health is a challenging combination of factors to deal with. If your business ever finds itself dealing with any one of these situations, bring in HR support sooner rather than later. It might cost you a little in time and money up front but it could save you a lot of pain, reputational damage and, potentially, £360,000.
If you need HR help for sex discrimination then please contact us.