The recent furore over Malky MacKay (former manager of Cardiff City) and the text messages which he allegedly sent has highlighted the difficulties that arise both for employers and employees in determining when banter becomes unacceptable and even discriminatory conduct. This presents a particular difficulty for employers, as employers can be held liable for discriminatory conduct by one employee against another.

However, there are certain steps that employers can take in order to reduce the risk of successful action being taken against them by employees:-

  1. Develop an equal opportunities policy which makes clear to employees it is unacceptable to engage in conduct that is likely to be viewed as discriminatory.
  2. Ensure that employees are trained on the policy and are aware of the importance of following it.
  3. If allegations of discrimination are made by employees, ensure these allegations are fully and promptly investigated.

Employees will often argue that their comments were simply banter and therefore cannot form a basis for disciplinary action by the employer. However, if the comments are made in the workplace and are potentially discriminatory, an employer is perfectly entitled to disregard the suggestion that the comments were innocent or humorous.

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