Diane Abbot race row: Sorry’s not always good enough

In a rather reserved apology Ms Abbott said: “I understand people have interpreted my comments as making generalisations about white people.”

It is unsurprising that people have interpreted her comment in this way. Her own party described it as a “sweeping generalisation” and “unacceptable”. Nick Clegg also went a stage further in describing it as a “stupid and crass generalisation”. However, the Labour party have nonetheless stood by Ms Abbott following her apology and she has kept her job as Shadow Health Minister.

Would, or should, an ordinary everyday employee get away with such comments? The Equality Act 2010 is designed to protect individuals from discrimination or victimisation and harassment relating to race (or other protected characteristics such as age, sex or disability).

Saying “sorry, I didn’t mean it” is not enough to get an employee off the hook. If a comment relates to race and it has the “effect of violating [an individual’s] dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment...” that individual can bring a claim under the Act. Where a Tribunal considers that it was “reasonable” for the conduct to have the effect complained of, then that is enough regardless of the intention. Misplaced “humour” can be enough for an employer to take action, as former Sky TV presenter Andy Gray learned to his cost last year.

Why does it amount to “harassment”? Contrary to popular belief, a one off comment is enough to amount to unlawful harassment. Further, an employee can bring a claim even where they are not the targeted individual or where a comment is not targeted at any specific individual at all. In certain circumstances employees who are not a member of the group being described can also bring a claim.

Claims can be brought against employees personally, forcing them to compensate employees for “injury to feelings”. However, employers can also be liable for the conduct of their employees in the course of their employment through vicarious liability. An employer has a defence to a claim if it can show that it took “reasonable steps” to prevent such conduct; this would include having a clear and enforced policy prohibiting such conduct.

The Abbott row once again highlights the dangers that employers face where their employees use Twitter and other social media. An ill thought out comment becomes widespread news in a matter of minutes after “Tweet” or “Send” is hit. Employers are left to deflect adverse publicity and potential claims.

So what can and should employers do in circumstances such as this? Undoubtedly they must do something. Failing to take action may prejudice their ability to rely on the “reasonable steps” defence in the future if there is a repeat of similar behaviour by the same or any other individual. Even where no clear policy is in place, dismissal might be justified where the individual holds a role in which they are responsible for ensuring equal opportunities in the workplace. It would not be unreasonable to conclude that the employee’s conduct was inconsistent with their continued employment in that role. Where, as is the case with Ms Abbott, an employee should be aware that their comments are likely to become widespread public knowledge and subject to scrutiny, dismissal for “bringing the employer into disrepute” might be justified.

Employers should have policies on equal opportunities and harassment and on the use of social media. Such policies must make it clear to employees what is and what is not considered acceptable conduct within and outwith the workplace. Any policies also need to be well communicated and managers trained in their use.

Very often “sorry” is too little, too late.

• Andrew Brown is an Associate in Anderson Strathern LLP’s Employment Unit who acts for employers and employees. He can be followed on Twitter at @AndrewB_AS.