“I’m not sexist, I have lots of female friends”

The recent story regarding Premier League chief Richard Scudamore, and the apparently sexist emails he has sent has raised an interesting debate.  So far, as we know, the emails consisted of unflattering comments about “female irrationality” and contained jokes targeted at women.

The Football Association has decided to take no action against Scudamore,  seemingly on the basis that the emails were private and sent from his private email account to colleagues and friends. The emails were leaked to the press by his former PA, a temporary female member of staff. According to her account, the emails were sent from an email address that she was required to check for Mr Scudamore in her capacity as his PA. She saw them, found them offensive and was upset by their contents.

Under section 26 of Equality Act 2010, this could amount to sex harassment. This defines harassment as unwanted conduct related to sex which has the purpose or effect of creating an intimidating, hostile, degrading, offensive or humiliating environment. It matters not that the email was not sent to the PA directly.  She says the emails were sent to or, from an email address that she was required to look at as part of her role.  Mr Scudamore’s account is that the email account used was a private account which the PA had no authority to access.  This could be immaterial as the content of the emails themselves could still have the requisite effect.

The PA may have a claim in the Employment Tribunal for sex harassment.  I suspect that she may be outside the strict time limits to pursue a claim because she only leaked the emails after leaving her role as Mr Scudamore’s PA.  The time limit is three months less one day from the date of the act complained of and, since 6 May, a claimant must first contact acas (The Advisory, Conciliation & Arbitration Service) before, they can present a claim. Unless she is still within these timescales, the Tribunal will not have jurisdiction to consider her complaint.

The other issue this story raises is the response from the FA. They have decided to accept the apology issued by Mr Scudamore and do not intend to take any further action. They have highlighted his successful and unblemished career and one members of the FA justified their stance on the basis that they have known Mr Scudamore for many years and “he is not sexist”.

Critics of Mr Scudamore and the FA have argued that his position, which includes promoting women in football, has become untenable and he has bought the FA and his role into disrepute. There may be queries as to the status of Mr Scudamore and whether he is an employee of the FA. Putting aside those issues and substituting the FA and Mr Scudamore for any other employer and employee, this conduct could amount to gross misconduct for which the employee could be summarily dismissed, notwithstanding that the emails may have been sent privately.  In a case where the employee has a public profile which requires him to encourage and promote women in the industry in question, his seemingly private views could be relevant to undermine his position.

The PA in question has come under attack for making this issue public. She states that she didn’t complain to HR whilst she was still working for Mr Scudamore because she did not think her complaint would be treated seriously and she thought the issue would be covered up. She leaked the emails to the press once she moved to a new job. It may be fair to criticize the way in which she has disclosed the matter, in such a public way. Alternatively, it could be considered in the public interest to know that a man who publicly seeks to promotes women in football may have quite stark views about them in private.

This debate may rumble on for some time. In the meantime, it is important that those who are subjected to offensive behaviour in the workplace do seek to challenge it, internally and through the Tribunal if necessary.

Anthea Christie, Employment Solicitor