Is this sexual harassment? Five real-life case scenarios
Over the years, our employment law team have delivered training to employers and their staff about sexual harassment. Our experience suggests that most employees know that they have to keep their hands to themselves and can’t inappropriately touch their colleagues. But they are much less clear about other types of conduct that may cross the line into sexual harassment.
This blog considers some real-life examples. Are you confident that your staff would be able to get the answers right and differentiate between appropriate and inappropriate behaviour which puts your organisation at risk?
The law
To bring a successful claim of sexual harassment an individual has to demonstrate that the person they are accusing has engaged in unwanted conduct of a sexual nature, which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
A tribunal will consider all of the circumstances of the case to determine this including whether the claimant's perception or reaction to what has happened is reasonable. That may include examining how they have behaved in the past.
WhatsApp message: “Hi sweetheart, see you in the morning xx”
Miss B was employed as a legal secretary for a firm of solicitors. Her boss sent her the above message which, he said, was intended for his girlfriend. When he realised what he had done, he immediately deleted it and sent Miss B another message which said it was “a bit naughty for a lady”. She initially accepted his explanation.
However the following day, he told her that he had intended to send the message to his daughter. And, during a separate conversation, he said he was single. Miss B believed the message had been intended for her, found it unwelcome and and brought a claim of sexual harassment.
Did she win?
Yes. The tribunal accepted that the owner of the business had inadvertently sent the message to Miss B, had apologised and immediately deleted it. But, it said that it was reasonable for Miss B to believe he was lying because of the inconsistencies in his explanation. That (along with other instances of sexual harassment) had the effect of creating an offensive environment for her.
Manager air kissing a colleague after walking her home
Miss C worked at a whisky bar and shop. Her manager walked her home from work several times and gave her an “air kiss” and hugged her when they reached her address. Miss Chen didn't complain at the time and appeared to have a open friendly relationship with her manager afterwards. She was subsequently dismissed and brought a number of claims, including that she had been subjected to sexual harassment.
Did she win?
No. The tribunal said that an air kiss was not unwanted conduct of a sexual nature and, even if it was, it was not at a level, where it was reasonable for Miss C to claim that items had violated her dignity or created a hostile, intimidating, degrading, humiliating or offensive environment for her to work in.
Chen v Cut Your Wolf Loose Limited and others
Manager who used the nickname “Willy” on the staff roster
Mr A worked in a warehouse. During his probationary period Mr A emailed his manager, Mr William McGinty and asked him to put his real name on the time sheet rather than the name “Willy” which he was referred to by other colleagues. Mr A said that if continued to insist on being called “Willy” - a term for a penis - he would consider it sexual harassment and “degrading the whole workplace”. He argued that he had been victimised for raising sexual harassment.
Did he win?
No. The tribunal accepted that Willy is a common abbreviation or nickname for William and that Mr McGinty had always been known by this name. It found that calling someone by their name was not disrepectful and there was no evidence to suggest that it amounted to sexual harassment.
The tribunal said that Mr A didn't genuinely believe that using the word Willy amounted to sexual harassment and his victimisation claim failed.
Mr A Aylmer v Dnata Catering UK Ltd
Conversation: “My ex cheated on me … I found a used condom”
Miss B was employed as a legal secretary for a firm of solicitors. During a conversation, the owner of the business told Miss B that he was single and went into graphic detail about his ex partner who he had caught cheating on him and he described how he had found a used condom on the floor.
Miss B brought a claim of sexual harassment.
Did she win?
Yes. The tribunal said that talking about private relationships in such detail is sufficient to amount to unwanted conduct of a sexual nature. Guidance produced by the Equalities and Human Rights Commission refers to an example of sexual harassment where a person discusses their own sex life. It accepted that Ms B felt offended and vulnerable - in part because of another incident that had happened previously (the What'sApp message - see above).
It said that it was entirely reasonable for a junior and new member of staff to feel that a conversation of this nature with her boss created an offensive environment for her.
Pretending to put money down a colleague's cleavage
Ms P worked in a bar and restaurant. During a Xmas party, her line manager said “what happens on a staff night out stays on a staff night out” and took some money from the drinks kitty and gestured putting it down Ms P's cleavage. She pulled away from him and said she was shocked by his behaviour. He immediately apologised and Ms P said it was “fine”.
Ms P brought a claim of sexual harassment in relation to this incident.
Did she win?
Yes. The tribunal recognised that there was no physical contact between the parties, but said that the line manager's behaviour towards Ms P was unwanted, clearly of a sexual nature which had violated her dignity and humiliated her.
Pealing v The Croft Aberdeen Ltd
A note about these cases
These are all first instance decisions which means they are not binding on any other tribunal or appeal court.
They are all fact specific and it's possible (and in some cases likely) that faced with a slightly different set of facts, a tribunal may reach different conclusions.
For example, on the issue of nicknames, there are other abbreviated names that, colloquially, also mean penis: William/ “Willy”, Richard/ “Dick” or “Dicky”. There's a big difference between a colleague who uses the shortened form of their name and one who asks certain colleagues to refer to them in this way, or refers to their nickname in a sexually suggestive way.
Our training
If you don't think that your staff would know the answers to these questions we suggest you re-visit your training on sexual harassment.
We have produced two modules to help your staff understand the new duty which requires employers to prevent their staff from being sexually harassed. The first is directed at all staff - both junior and senior and explains the legal definition of sexual harassment and gives practical examples to help reinforce the learning. The second module is directed at line managers and provides them with the tools they need to confidently deal with incidents and role model best practice. You can find out more about this training here.
We can also offer bespoke face to face or remote training tailored to your organisation. Please speak to Jenny Arrowsmith or Gordon Rodham for more information.
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