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Did the Spanish Football Federation almost score an employment law own goal?

September 13, 2023

Over the weekend the news broke that Luis Rubiales, who had last week been suspended by FIFA from his role as the head of the Spanish Football Federation pending a disciplinary investigation, had resigned. His conduct toward Jenni Hermoso during the ceremony following the World Cup Final on 20th August is also currently the subject of an investigation by Spanish Prosecutors which could result in Rubiales facing criminal charges.

In case you did manage to miss the events which followed the World Cup Final on the 20th August 2023, as the Spain Women’s Football Team celebrated their win and were crowned World Champions, Luis Rubiales first embraced and then kissed Spain striker, Jenni Hermoso on the lips. The incident was broadcast live and internationally and over the last couple of weeks there has been much debate online but until recently little definitive action with respect to reviewing the event and possible repercussions. Given how public this event was and the widespread backlash, it would be easy to jump to conclusions. But what process should an employer follow in order to ensure any resulting sanction stands up to scrutiny?

Is there protection under the Equality Act 2010?

Had the events concerned a UK-based footballer, the Equality Act 2010 would be engaged.

The definition of those protected in the legislation is purposefully broad in order to catch all kinds of employment and work arrangements. It covers those who work under a contract of employment, a contract of apprenticeship or a contract personally to do work. I don’t know much about the ins and outs of international football contracts, but I should think that there exists a contract between Jenni Hermoso and the Spanish Football Federation which falls into one of these categories: if not a contract of employment, then a contract personally to do work. I can’t imagine they would be best pleased if Jenni had someone else turn up for her shift in the Spain Women’s team!

Does this constitute sexual harassment?

So, if Jenni Hermoso can show she is protected under the definition provided in the Equality Act, would the conduct she was subjected to after the World Cup Final be covered by the legislation? The Equality Act defines ‘sexual harassment’ as:

  • engaging in unwanted conduct
  • which is of a sexual nature,
  • where the conduct has the purpose or effect of violating a colleague’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that colleague or where that colleague’s rejection of or submission to the conduct results in them being treated less favourably by the employee.

When deciding if an event or events constitute(s) harassment, the legislation states that we should consider the accuser’s perception of the offender, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. There is further clarification from the EHRC Employment Code that ‘unwanted’ can be taken to mean ‘unwelcome’ or ‘uninvited’ and that this does not need to be evidenced by express objection at the time of the incident.

We have all seen the video of Mr Rubiales actions (if you haven’t by now, I reckon we’re all a mere 30 seconds of social media scrolling away from it at any given moment!). A kiss of this nature would be an act of sexual nature. It is a completely unprovoked act and the evidence does not seem to show Ms Hermoso ‘inviting’ it. Jenni Hermoso has herself stated that the kiss was not consensual. This, coupled with the public setting and the power dynamics at play, with Rubiales occupying a position of power within Spanish and world football, all point to the conduct amounting to ‘sexual harassment’.

While the term ‘harassment’ in ordinary language indicates a pattern of behaviour or multiple incidents, in Reed and another v Stedman [1999] IRLR 29 it was found that a single incident could be enough to constitute harassment although the nature of the incident itself and its severity were critical for this determination. And so, this single event would engage the Equality Act without necessarily having to look at any other incidents or the relationship between Hermoso and Rubiales.

The Equality Act also contains provisions which would mean that the employer would be vicariously liable if an employee were found to have discriminated against a colleague on the basis of any of the protected characteristics.

Higher Stakes for Employers

Under the Equality Act, failure on the part of the employer to adequately deal with such an incident would leave them vulnerable if a claim were made under the Equality Act. Most employers will have a policy on equal opportunities and / or bullying and harassment, so upon becoming aware of conduct of this nature it is important to consult this alongside your disciplinary procedure. As always, where there are gaps or you require further guidance on disciplinary procedure, the ACAS Code of Practice is the best place to start.

So, what would a good employer do?

The key is to act quickly. As soon as the employer becomes aware of potential acts of harassment or discrimination an investigatory officer should be appointed to look into the alleged conduct. The investigation is an essential part of a fair procedure. It’s important that this investigation is a purely fact-finding exercise and the investigator does not set out to make a decision on the sanction which should be handed down – no matter what is happening on social media!

The investigation will, ultimately, determine whether or not disciplinary action needs to be taken. However, while the investigation is happening, the employer should consider what interim action could or should be taken in order to support their employees and ensure that the process is undertaken with the strictest confidentiality. Possible interim measures could include:

  • Allowing the accuser to take paid time off work (although care should be given to ensure that does not result in them feeling ostracised from their colleagues for an extended period while the investigation is ongoing);
  • Supporting the accuser should they wish to access counselling or other specialist services;
  • A change in team structure to ensure that the accuser and accused are not working together;
  • Suspending the accused.

The employer’s decision whether or not to suspend the employee being accused of this conduct should be based on the facts of each case. Often factors such as whether having the accused employee in the workplace could affect the investigation ought to be considered. In the case of Rubiales, perhaps the decision was made that his continuance in his role was causing such uproar online that it would hinder a fair disciplinary process, perhaps his employer felt pressure to seem as though they were taking action. If the employee is suspended, this should be as brief as possible and be kept under review. It also should be made clear that the suspension is not the disciplinary action.  

While each indecent should be examined on the individual facts and circumstances, it is important to have a robust approach that is applied consistently to provide protection to both the business and their employees. Employers have a duty to take reasonable steps to protect their employees from any discrimination or harassment on the basis of any of the protected characteristics. If employees do not feel supported after experiencing sexual harassment and believe they have no choice but to resign as a result, employers could end up facing claims of sexual harassment and constructive dismissal.

We will likely never know what the outcome of the disciplinary process invoked by FIFA in relation to this particular case would have been, but it is an important reminder to employers to keep up to date with the appropriate disciplinary procedure to allow them to act swiftly. Where the Equality Act is concerned, the stakes are higher as it leaves the employer open to a claim under that legislation as well as any claims regarding any subsequent disciplinary process. The key is for employers to avoid being a Crouch Potato when they are made aware of allegations, say “Ney-mar” to this type of behaviour and that will hopefully save things from getting Messi!

If you have any questions on this on any other area of Employment law, please get in touch with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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