Most of the discussion around sexual harassment in the workplace involves women as the subject of the unwanted conduct – but what happens when the shoe is on the other foot?
With women at the forefront of the high-profile cases we see in the media, male voices can often go unheard. However, the Equality Act (EqA) 2010 protects both men and women from sexual harassment, and HR professionals must ensure they take an even-handed approach to any allegations, regardless of gender.
With this in mind, Ellis Whittam recently held a mock Employment Tribunal to explore how sexual harassment claims, specifically those involving a male claimant, play out at trial. In this article, we walk you through this hypothetical case, including the incidents that led the employee to take legal action, the arguments presented on both sides, and the Judge’s verdict.
Background to the case
The claimant in this case was a Political Consultant employed by ‘Westminster Political Services Ltd’. Having been promoted from elsewhere in the company into a new team, the claimant alleged that he had been sexually harassed by his line manager, ‘Tamara’.
After conducting their own internal grievance procedure, the company upheld the inappropriate conduct part of the claimant’s grievance but took no further action on the harassment claim, and the subsequent disciplinary procedure resulted in Tamara being issued with a verbal written warning accompanied by a letter of concern.
Dissatisfied with the outcome, the claimant brought claims for both sexual harassment (contrary to Section 26 of the EqA) and constructive unfair dismissal, based on his assertion that he felt forced to resign due to the treatment he experienced and the subsequent handling of his complaint by the employer.
Grounds of complaint
The claimant’s case centered around a series of incidents that he alleged occurred between December 2018 and April 2019.
As part of Secret Santa, the claimant received a voucher for a spa day, accompanied by a note that read ‘just a little something to get you relaxed’. The note also had a red lipstick mark on it. The claimant suspected that this was from his line manager, Tamara.
The respondent’s barrister questioned why the claimant assumed that it was Tamara who had sent the voucher, particularly as he admitted that there had been no previous inclination that she would want to be sexually suggestive. The claimant couldn’t provide any substantial reason for coming to this conclusion beyond a gut feeling that it was her. The respondent’s barrister also questioned what part of receiving a spa voucher he had found offensive as opposed to a nice gesture, to which the claimant replied that the innuendo in the note felt suggestive, and accompanied by the red lipstick mark, this had made him feel uncomfortable.
At a team briefing, a colleague suggested introducing a ‘hunk of the month’ contest, to which Tamara had looked in the claimant’s direction and commented that he was the ‘hunk of her life’.
Again, the claimant was asked what in particular he had found offensive about this comment, with the respondent’s barrister suggesting that it was nothing more than a lighthearted remark designed to be taken as a joke. The claimant replied that he found the discussion uncomfortable, that it was an inappropriate comment for a line manager to make given the professional nature of their relationship and the fact that he was married, and that having such a comment directed specifically towards him had made him feel singled out.
NB: Here, the Judge postulated on how the remark would have been received had genders been reversed. He suggested that the ‘hunk of the month’ comment may have been trivialised as it was directed at male colleagues; had it been ‘babe of the month’, for example, the outlook may have been different.
At the Christmas party, Tamara said to the claimant, ‘I’ll stop drinking wine now; it makes me horny drunk’, before sustaining eye contact with him.
The respondent’s barrister maintained that this comment had been made with other people around and was merely banter between colleagues. However, the claimant claimed that he knew it was directed towards him as Tamara had held eye contact with him as she said it.
After the Christmas party, the claimant received a text message from Tamara with an emoji of a wine glass followed by the aubergine emoji.
The respondent’s barrister immediately picked up on the fact that the claimant hadn’t included this incident in his grievance and asked him why he had neglected to mention it. He explained that this was due to embarrassment. However, given that the claimant admitted to being unsure of the meaning of the aubergine emoji, the respondent’s barrister questioned how it was possible for him to feel this way. The claimant explained that he had later learned that this emoji is commonly used to indicate male genitalia, and that when coupled Tamara’s previous behaviour, he understood it to be suggestive. Nonetheless, the respondent’s barrister emphasised the inconsistency between the information contained in the claimant’s grievance and the claim made to the Tribunal, suggesting that he wasn’t initially as affected by the text message as he was now claiming.
While the claimant was going through a trial marriage separation, Tamara commented that his wife was a ‘fool to let him go’ and had sent him a text on Valentine’s Day that read ‘thinking of you x’.
When asked why he took issue with this seemingly supportive text from his line manager, the claimant explained that he was happy to be supported but felt it was unprofessional for Tamara to contact him outside of work. The respondent’s barrister suggested that they had become friendly colleagues, pointing to the fact that they would socialise outside of work hours; however, Jonathan stated that this was always work-related and that he had only provided his mobile number for work emergencies.
Following a haircut, Tamara told the claimant that he was ‘looking fresh’ and that the ‘look really suits you’. She also commented that he ‘looked like Harry Cane now’, someone whom it was understood she found to be attractive.
The claimant explained that at this point, he felt Tamara’s behaviour was becoming gradually more inappropriate. The respondent’s barrister referred to witness statements – where colleagues had deemed this to be a throwaway comment and said that Tamara has remarked on female colleagues’ hair too – and argued that there was no sexual undertone on any reasonable interpretation. However, the claimant maintained that remarks about his personal appearance were an example of where Tamara’s conduct had crossed the line.
In April 2019, the claimant, Tamara and a few other colleagues went for drinks after work. After they had been drinking for three hours, Tamara asked the claimant what his star sign was, to which he replied he was a Leo. She told him she was an Aries and said that she got on well with Leos. Later that night, the claimant received a text from Tamara with a lion emoji, a goat emoji, and signed off with ‘xx’.
The claimant claimed that this had been the ‘last straw’ and was the incident that had prompted him to submit the grievance. The respondent’s barrister asked him what he understood the text to have meant, to which he replied that it appeared to infer their compatibility outside of a professional context. However, the respondent’s barrister countered that this was open to interpretation and could just as easily have implied their compatibility as friends and colleagues.
The respondent’s barrister, quite reasonably, asked the claimant why he hadn’t he raised the grievance sooner. To this, the claimant explained that he was new to the role and was reluctant to do anything that may jeopardise his new position or make working relations awkward. He also stated that aside from the issues with Tamara, he was happy in his role, and that whenever he had voiced his concerns to colleagues, he had essentially been told to man up and that he should be flattered.
Procedure or outcome?
The respondent’s barrister put it to the claimant that he was unhappy not with how the employer handled the case, but with the level of sanction imposed. The claimant admitted that he felt the employer’s decision to issue Tamara with a verbal warning was too lenient; however, the respondent’s barrister pointed out that this wasn’t his call to make, and that this sanction was in line with the company’s disciplinary policy.
The respondent’s barrister also pointed out that there was no mention that the grievance would be dealt with as sexual harassment but as inappropriate comments, and emphasised that the claimant was aware of this fact and hadn’t contested it.
The claimant was also asked why, if he wasn’t satisfied with the outcome of the disciplinary process, he didn’t raise another grievance. To this, he responded that he felt his options were becoming limited and that he had lost confidence that his concerns would be taken seriously. This, he said, is why he was reluctant to speak up in the first place.
Witnesses
After hearing from the claimant, the Tribunal moved to cross-examine the grievance officer and the disciplinary officer who handled the claimant’s complaint.
Witness 1: The disciplinary officer
The disciplinary officer was first asked to describe Tamara’s character, to which she responded that she is known to be a jokey, likeable person with a playful attitude, and that there had never been any issues raised previously with her behaviour. With this in mind, the claimant’s barrister contended that the disciplinary officer went into the procedure with a preconceived view of Tamara, which meant that she wasn’t entirely independent. Moreover, they argued that because of this position, she had never intended to sanction her.
While the disciplinary officer acknowledged that she might have had an idea about how she planned to approach the situation, she said was ‘prepared to change her mind’. Again, the claimant’s barrister pointed out that this meant she wasn’t approaching the process from an entirely neutral standpoint, which is essential to ensure a fair procedure.
The claimant’s barrister accused the disciplinary officer of not applying her own mind, suggesting that she relied entirely on the information gleaned from the grievance investigation, which in itself was flawed. They also referenced how she had made comments to Tamara along the lines of ‘this is just a formality’, asking why the company would seek to reassure her given that the grievance process concluded that the incidents did happen. The disciplinary officer’s response was that such comments were simply to put her at ease.
All of this, coupled with the disciplinary officer’s admission that she didn’t think Tamara needed to alter her behaviour in general but just to the ‘sensitive’ claimant, led the claimant’s barrister to argue that the whole process was just for show. Surprisingly, the disciplinary officer didn’t disagree, saying that she felt it was important that the company was ‘seen to be acting’. She expressed that in her opinion, this was just ‘friendly banter’ which could be dealt with by making Tamara aware of, and requiring her to alter, her behaviour. Crucially, when asked, the disciplinary officer was unable to define where banter crosses into harassment, admitting that they had never had to consider where the threshold lies before.
Witness 2: The grievance officer
The claimant’s barrister began by putting to the grievance officer that the company’s equality and diversity policy was not fit for purpose; it was just half a page long, with no explanation of what constitutes harassment and discrimination. As such, the claimant argued that it was woefully inadequate: How are employees supposed to know what not to do? Is it left to employees’ common sense? To this, the grievance officer simply responded that the company rarely experiences issues of this nature, that they do not want to micromanage, and that employees should be aware of their own conduct.
As with the disciplinary officer, the claimant’s barrister maintained that the grievance officer’s description of Tamara as ‘vivacious but harmless’ meant that she was not entirely independent, suggesting that she too was not open to finding that Tamara’s behaviour was particularly serious. They put it to the grievance officer that surely the claimant’s reference to being ‘victimised and harassed’ was a red flag, to which she responded that she felt this was common terminology and that the claimant hadn’t raised any issues with their categorisation of the conduct as ‘inappropriate behaviour’.
The claimant’s barrister also focused on the thoroughness of the investigation, pointing to the fact that the short notes taken didn’t seem adequate to reflect a meeting that was supposedly 1 hour 20 minutes long. The grievance officer claimed that while these minutes weren’t verbatim, a thorough discussion was had. However, the claimant’s barrister countered that this was insufficient information for the disciplinary officer, who wasn’t present at the grievance meeting, to rely on. Again, the grievance officer argued that the claimant had had the opportunity to review the minutes and had never raised any concerns. At this point, the Judge interjected, emphasising that the claimant isn’t a professional, and while the minutes may be accurate, they are not comprehensive enough in any reasonable view.
Importantly, the Judge pointed to the fact that other male colleagues had purportedly told the claimant ‘that’s just how she is’, and the Judge questioned why this hadn’t been followed up more seriously. The grievance officer retorted that Tamara had made similar lighthearted comments to women too; however, the Judge put it to her that if such conduct was perpetrated by a male colleague, she would have found it to be harassment.
Verdict
When delivering the verdict, the Judge explained that the claim for constructive unfair dismissal would stand or fall on the claim for sexual harassment; if the sexual harassment claim was upheld, then the claimant was entitled to resign. He acknowledged that the Tribunal had not heard from Tamara; however, in any event, the employer is vicariously liable for the actions of its employees.
Ultimately, both of the claimant’s claims succeeded.
In explaining how the Tribunal arrived at this decision, the Judge noted that:
- The company’s policy documentation fell far short of what is expected; it was inadequate, outdated, and did not clearly set out the company’s expectations and what can be complained of.
- The respondent failed to satisfy the Tribunal that the grievance was dealt with properly, as the claimant’s grievance made reference to harassment but was dealt with as inappropriate behaviour. Further, it shouldn’t be expected for the claimant to have to appeal, as this sets the standard too high.
- The respondent failed to satisfy the Tribunal that Tamara was sufficiently dealt with, as by the company’s own admission, the allegations did occur save for the dispute over who sent the spa voucher. (The Judge did, however, concede that the fact the aubergine emoji incident didn’t feature in the claimant’s grievance suggested he wasn’t as upset at the time as he now claimed to be).
- In regards to the respondent’s assertion that the claimant’s reference to being ‘uncomfortable’ in his grievance doesn’t hold up to the statutory language used to define sexual harassment, the Judge stated that being ‘uncomfortable’ is not inconsistent with a finding of harassment.
- Finally, and perhaps most crucially, the handling of the claimant’s claim was found to be little more than a ‘window dressing’ used to appease employees.
James Tamm
Director of Legal Services
Expert Comment
We ran a very similar event in Birmingham two weeks after this event in Chester. It was the same set of facts and witness statements, but a different audience, different barristers and a different Tribunal panel. Interestingly, we had a different result, as in Birmingham the claimant did not win his sexual harassment claim but did succeed with his constructive dismissal.
In Chester, the audience at the beginning was split roughly 50/50 about who would win and remained so even after hearing the evidence and submissions, albeit some people had changed their minds. In Birmingham, we had a similar 50/50 split at the start, but by the time all the evidence was complete, more or less everyone had changed their minds and thought the claimant would win on both counts. However, they were wrong, with the Tribunal holding that all but one comment made to the claimant was not related to his sex or overtly sexual in nature, and even that one comment was out of time.
No guarantees
I think this is a perfect illustration of the warning we give to every client involved in a claim: there are simply no guarantees. As legal professionals, we can have a view of the evidence and an instinct as to who is likely to win, but litigation is inherently unpredictable. The best cases on paper can soon fall apart when a witness is placed under pressure and cross-examined by a skilful advocate. That is why settlement is often preferable, as it eliminates the uncertainty. It also prevents adverse findings of fact (such as an employer being held to have discriminated against an employee) from being placed on the public record via a Tribunal judgment.
What went wrong
One consistent theme in both Chester and Birmingham was that the respondent in this case handled the grievance and subsequent disciplinary process very badly. No doubt that is why the constructive dismissal claim was lost in both hearings.
The Tribunal panel in the Chester case was particularly scathing about the policies and procedures that were designed to prevent harassment. They were simply inadequate for that purpose, and more robust documentation would have helped significantly. However, documentation alone is not enough; you need to have managers who are trained in how those procedures operate and know how to react when a concern is raised. This is absolutely crucial to any defence against this sort of claim.
A different outcome
What everyone agreed with – audience members, the panel and the barristers involved – was that if the respondent had treated the complaint seriously, disciplined Tamara in line with its own policies, and issued an appropriate sanction against her, even the constructive dismissal claim would have failed. Any respondent who would have taken advice from an Employment Law specialist about that process would certainly have avoided the pitfalls that the company in this case ran into.
This is obviously where we can help. With our support, this particular respondent would have dealt with the grievance in a thorough and compliant way. The opportunity to resign in response simply would not have arisen, and the company would have been much better placed to defend any claim that did arise.
