HR professionals may have been alarmed by recent media reports that YouTube video footage of people with speech defects such as stammers are being regularly downloaded and circulated on the internet as ‘comedy’.
Stammer sufferers have been deeply concerned by this ridicule and, to date, the British Stammering Association has had no success in getting the footage removed, on the basis that it ‘did not violate [YouTube’s] terms of business’.
A recent BBC article, ‘You become a self-editing machine’, contains feedback from stammerers demonstrating the struggle they have had in dealing with their condition – even reporting the suicide of a well-educated 26-year-old stammerer, who could not get a job due to his condition.
Although stammering can, in more extreme cases, constitute a disability under the Disability Discrimination Act (DDA), for many, it seems acceptable to find comedy in the condition (just think of Arkwright, the character played by Ronnie Barker in Open All Hours).
Q What action can an offended employee take?
A If an employee takes offence to any such footage in the workplace, they should first raise a grievance, which you would tackle in accordance with your normal procedures. You are responsible for ensuring your grievance procedures are prominent, and that staff are aware of them.
Clearly, by the time an employee raises a grievance, a certain level of harassment will have already taken place, for which there may be some entitlement to compensation for injury to feelings. An employee can make a complaint to a tribunal under the DDA, and potentially succeed in an injury to feelings award.
If you deal with the grievance properly, then this award should, in most cases, be in the low thousands, but this will depend on the level of harassment, and whether you can demonstrate that you took sufficient steps to prevent it.
Q So is it up to the employee to bring the matter to my attention?
A To some extent, but it is inevitable that some victims may not raise a grievance through fear of reprisals from the perpetrators, or if they have grounds to believe that the grievance will not be properly actioned by the employer. For this reason, your grievance, harassment, equal opportunities, internet and e-mail policies need to be prominent, and supported with records of structured employee training to ensure they are sufficiently aware of the consequences.
By doing this, you will be able to demonstrate that you have addressed the matter on a preventative basis. If you just rely on a grievance being raised and have no evidence of preventative measures, you could suffer significant damages, irrespective of whether a grievance is raised.
Employees finding comedy in stammering is often through ignorance of the condition, and what they perceive as innocuous banter can amount to actual bullying and harassment. Equality training should address these issues.
Q Is this just limited to stammerers?
A Sadly, no. There are many other conditions that could constitute a disability where some may find comedy value, such as dwarfism, disfigurements, mental illness and people falling or stumbling with walking aids.
Disability is not where it ends. There may be perceived comedy value in footage involving religious belief, race, sex, sexual orientation or age. All of these areas have specific legislation that protects individuals from related bullying and harassment in a similar way to those with disabilities. Employees who are being bullied or harassed for issues that do not relate to one of these protected areas (such as weight issues, or facial features) are protected, but in more general terms under the Protection from Harassment Act.
Q How do we deal with staff who are offended?
A If, after investigation, you find that there have been circumstances that justify the offence, you may need to look at disciplinary action against the perpetrators. Depending on the seriousness of the circumstances, this may be dismissal.
Review your policies and training, and arrange further training for your workforce where necessary.
If the circumstances involve a specific condition, there will usually be an association able to advise you about increasing awareness of the condition.
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The important thing is not to ignore issues or trivialise circumstances where offence has been caused, even if you do not properly understand why offence has been caused. Ultimately, if you do ignore the issues, then constructive unfair dismissal may also arise.
Vanessa James, partner and head of employment, SA Law
