Simon Allison: Watch the language or you might cop it

Simon Allison is an Employment Partner at Blackadders LLP @EmplLawyerSimon
Simon Allison is an Employment Partner at Blackadders LLP @EmplLawyerSimon
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Will you be watching the new series of the BBC’s Line of Duty when it starts on Sunday?

Three things have happened since the last series ended. Firstly, the #MeToo campaign has developed into a phenomenon. Secondly, the interview room has become the most exciting room in any police headquarters (even with these really, really long beeps). And, thirdly, I have started tagging the word “fella” onto the end of a lot of my sentences.

Vicky McClure as DS Kate Fleming, Martin Compston as DS Steve Arnott and Adrian Dunbar as Ted Hastings in Line of Duty

Vicky McClure as DS Kate Fleming, Martin Compston as DS Steve Arnott and Adrian Dunbar as Ted Hastings in Line of Duty

But could it be argued that there is a sexism plotline building around Ted Hastings?

Superintendent Hastings is the ­(fictional) senior investigating ­officer of the Anti-Corruption Unit within Central Police. Last season, Hastings got Detective Chief Inspector Roz Huntley to confess to her crimes. Hastings also promoted his mentee, Detective Sergeant Steve Arnott, to the role of Inspector over his (female) colleague, Detective Sergeant Kate Fleming.

Hastings calls men he doesn’t much like “fella”, as in “now you listen to me, fella” or “you think that this is a joke, fella”. Those who meet with his approval are usually referred to as “son”. However, his use of the words “darling”, “wee lass” and “wee girl” have been met with universal ­disapproval by employment lawyers everywhere.

The definition of harassment includes “unwanted conduct” related to sex which creates a degrading, humiliating or offensive environment. Could this type of language result in a successful claim of harassment in the workplace? If a female could demonstrate that this language caused a humiliating or offensive atmosphere, it is entirely possible that this claim could succeed. You should take more care, fella.

Furthermore, during an interview with DCI Huntley, Hastings referred to the fact that Huntley’s career had “hit a wall” when she took a break to start a family, called her “that wee girl” and later pulled rank with ­Huntley, telling her in no uncertain terms, “I’m the senior ranking ­officer, darling.”

Huntley replies coolly to Hastings, saying: “I’d thank you to use gender-neutral language.” Again, if we ­consider the definition of harassment, this type of behaviour in the workplace could fall foul of the legislation. An employer would require to argue that its female colleague’s reaction to the acts was not reasonable. You are waist deep in it now, fella.

We know that Kate Fleming had recently passed her sergeant’s exams. When both she and DS Steve Arnott were up for promotion to Inspector, Arnott got the job. However when delivering the news, Hastings took Arnott for a “blokey” pint to discuss it and refused to meet Fleming ­anywhere but the office.

“I can hardly meet her for a drink, can I?” said Hastings. “An attractive woman like that?” Hastings ­compounded the chauvinistic image by stating, “How would it look? I might as well be seen running around with one of Pan’s People.”

Forgive me fella, but does anyone under the age of 50 actually remember Pan’s People? If an employer treats a woman less favourably than a man because of sex, this could amount to a claim of direct sex discrimination. An employer would require to prove the reason for not promoting a female was unrelated to her sex.

Remember when Huntley summoned up the stats to prove Hastings’ emphatic failure to promote women within the unit? This was perhaps the most powerful argument which she could make against Hastings. Where a workplace operates a rule, practice or procedure which disadvantages a particular sex, this can amount to indirect sex discrimination. Such indirect sex discrimination can be justified at an employment tribunal if an employer demonstrate that a failure to promote females is a ­proportionate means of achieving a legitimate aim. Employers should note however that this can be a difficult defence to run.

So will the advent of the #MeToo campaign result in a series of ­successful discrimination claims in the future? Perhaps series five will begin with an employment tribunal claim form being served on Hastings, citing direct and indirect sex discrimination along with the small matter of harassment…

For all his faults, I don’t believe that Hastings’ intention is to discriminate and just hope that he’s not that kind of fella, fella.

Simon Allison is an employment partner at Blackadders LLP