Sexual harassment – what you should know as a golf club manager

This guidance from the National Golf Clubs’ Advisory Association (NGCAA) examines what legal issues golf club managers should be aware of when it comes to sexual harassment claims against members or staff. 

The high-profile #MeToo movement has been headline news for several months now, with scandals involving Harvey Weinstein and the recent criminal prosecution of Bill Cosby in the USA. In light of the #MeToo movement, we take a look at domestic legislation on harassment under the Equality Act 2010 and highlight some key areas for golf club managers.

The laws to prevent sexual harassment have been around for quite some time, but there is strong evidence of a dynamic cultural shift and that predatory sexual behaviour must be treated with zero tolerance in all golf clubs, institutions and workplaces. It seems rather bizarre to be making such a self-evident statement in the 21st century – but the awful truth is that many women still experience unwanted attention from men in the workplace (and elsewhere) which can cause significant distress and which, in some cases, can result in expensive claims against clubs and convictions for criminal sexual assault (note that the criminal law is outside of the scope of this article).

Golf club managers have the difficult task of monitoring both member and employee behaviour, very often having to carefully police the interaction between the two groups. From a legal perspective, it is worth highlighting that there has not been any significant change in the law to bring about a cultural shift.

Harassment under the Equality Act 2010 occurs where there is:

‘Unwanted conduct which has the ‘purpose or effect’ of:

• violating a person’s dignity; or
• creating an intimidating, hostile, degrading, humiliating or offensive environment for the recipient.’

It is extremely important to appreciate that the intention or motive of the perpetrator is irrelevant in terms of potential legal liability. The power (if that is the right word to use) to trigger an allegation and a claim for harassment (not only on the grounds of sex but also on the grounds of race, age, disability, transgender status, sexual orientation, religious and philosophical belief), rests with the recipient of the conduct or behaviour.

The key words in the definition are ‘purpose’ and ‘effect’. It is irrelevant whether the perpetrator did not intend to cause offence (that is, had no ‘purpose’ or ‘intention’ to cause offence). The determinative issue is whether the ‘effect’ of the behaviour caused such offence and distress. That will be a matter of fact in each particular case based on the circumstances and reasonableness of the recipient’s response to the alleged discriminatory conduct.

All golf clubs should make it clear in their employee and member policies that deal with equality and disciplinary and grievances that any discriminatory conduct (including harassment) will be treated as a very serious issue, which could potentially result in summary dismissal (in the case of employees) or expulsion (in the case of members).

The law has not changed. Attitudes have changed. Standards of behaviour in terms of professional and respectful attitudes within the golf club and workplace must follow suit. It is often said that the law can be a blunt instrument and over-regulation can stifle traditional human interaction.

The prohibition on sexual harassment should not mean that humorous and affectionate behaviour would be absolutely prohibited but it is important to appreciate that there are boundaries which must be respected. The choice of each individual to engage in consensual flirtatious behaviour remains intact. However, where such behaviour is unwanted by the recipient then that is where all parties must be aware that there is a clear legal line in the sand which should not be crossed.

The extreme criminal sexual assault cases reported in relation to Harvey Weinstein and Bill Cosby are thankfully not reflected in the day to day experience of most golf clubs. But, the consequences of the potential abuse of power within the member / employee, member / member or employee / employee relationships where staff or members may be vulnerable to pressure or manipulation should be properly, carefully and respectfully managed.

In order to defend a claim of sexual harassment from an employee or a member, a golf club must show that they took all reasonable steps to prevent such unlawful behaviour from occurring. If a golf club cannot prove that it has taken such reasonable steps then it could be held vicariously liable jointly and severally for the discriminatory acts of its employees or members. Some practical steps which may assist a golf club’s defence in this regard are:

• drafting and implementing policies which specifically refer to sexual harassment as being a gross misconduct / expulsion matter;
• making both employees and members aware of those policies and the standards of respectful behaviour required;
• providing effective training to all employees (and to members) as to what constitutes acceptable and unacceptable behaviour and how to deal with allegations which may arise;
• dealing effectively and robustly with any complaints raised;
• creating an inclusive and open culture which is respectful to all.

The Equalities and Human Rights Commission recently published a report entitled: Turning the tables: ending sexual harassment at work. This may indicate that there is an appetite within government to strengthen the law on sexual harassment.

Chief Executive Alistair Smith leads the National Golf Clubs’ Advisory Association (NGCAA) in providing guidance and support on all legal matters impacting golf clubs. 

The National Golf Clubs’ Advisory Association (NGCAA)

The Threshing Barn, Homme Castle Barns,

Shelsley Walsh, Worcestershire, WR6 6RR

Tel: 01886 812943

email info@ngcaa.co.uk

www.ngcaa.co.uk