A&L Goodbody: Recent case law on sexual harassment and what it means for employers
Olivia Boyle, solicitor in A&L Goodbody’s Belfast office, examines recent case law on sexual harassment in the workplace.
Two recent cases relating to sexual harassment in the workplace have highlighted how vital it is that employers are live to this issue and, more specifically, that any allegations of sexual harassment are dealt with efficiently and correctly.
The Tribunal awards and settlements in these cases can be very significant and demonstrate the risks involved in getting the handling of sexual discrimination and harassment complaints wrong.
We look at these cases in more detail to identify how employers can remain compliant with discrimination and harassment legislation as well as maintaining an inclusive and safe working environment for their employees.
Anonymised sexual harassment claim (Northern Ireland)
This case made the headlines recently when it was described as a “shocking story” demonstrating “a toxic laddish culture that shows scant respect for female colleagues” by Chief Commissioner of the Equality Commission for Northern Ireland, Geraldine McGahey.
The Claimant, whose identity remains anonymous, settled her case alleging sexual harassment at work for £90,000.
The incident occurred in 2021 and involved a senior male manager instructing the Claimant to stand up and turn around during a meeting in the workplace, at which point he proceeded to slap her bottom with a ruler in front of another male manager, stating “I’m sorry, I had to”. The incident was then discussed and laughed about with other colleagues as they arrived at the meeting.
The Claimant was initially too humiliated to discuss the incident with her mother and boyfriend but, when she eventually disclosed what had happened, they encouraged her to speak to HR and a more senior manager.
Thereafter, the Claimant informed her employer that she would not return to work until the issue was dealt with and declined to meet the more senior manager (who carried out the act) at a coffee shop to see if the issue could be “resolved.”
When a formal grievance was subsequently submitted by the Claimant, it was not acknowledged by her employer for 10 days. When an investigation did eventually ensue, it took five weeks for her grievance to be upheld. However, whilst the grievance itself was upheld, the grievance outcome letter contained untrue and disparaging comments about the Claimant, raising questions about her behavior in the workplace and alleging that she dressed and behaved in a provocative manner – a further attack on her character which the Claimant perceived as additional harassment and victim-blaming. The Claimant subsequently appealed against the content of the letter and resigned.
Commenting on the case, Chief Commissioner Geraldine McGahey highlighted:
“It is vital that women who seek help from their employer are not blamed for what happened to them. It is essential that concerns raised by any woman are treated seriously, to address the culture where this can happen, focus on how it was allowed to happen and make a practical and helpful response after the incident. Failure to protect women at work means an employer is letting women down.”
X v Volkerrail Ltd
Further afield in Leeds, another anonymised Claimant was awarded approximately £420,000 in damages for sex-based harassment and victimisation suffered at work.
The Claimant was a female executive working for a railway infrastructure services firm, VolkerRail. Whilst working for VolkerRail, the Claimant was subjected to persistent unwanted romantic advances and inappropriate conduct from her line manager. This included receiving messages containing the peach emoji, which is widely understood to refer to someone’s bottom.
The Leeds Employment Tribunal heard how the Claimant’s line manager had suggested that they move abroad together and start a new business, persistently invited the Claimant to one-to-one dinners, called the Claimant whilst drunk and made statements via text such as “In case it’s not obvious I do really like you but I’m not the best at saying so. I’m cool if you don’t feel the same way & I wouldn’t want it to change anything, but just wanted to let you know.” The list of questionable behaviour is by no means short and has been outlined in full throughout the judgement (link here).
Following a dispute over pay (which the Claimant believed was a result of her rejecting her line manager’s advances), the Claimant gave notice of her resignation and then raised a grievance in relation to his treatment of her. Whilst VolkerRail found that his behaviour had indeed been inappropriate, they found that it did not constitute sexual harassment and when the Claimant appealed the decision, the same conclusion was reached. The Claimant then sought to withdraw her resignation but VolkerRail denied her request.
It was at this point that the Claimant brought her claim before the Employment Tribunal. Whilst they found that her line manager’s behaviour did in fact constitute sexual harassment, this element of her claim was out of time.
Unusually, however, the Tribunal found that the way in which VolkerRail conducted the grievance and appeal process itself amounted to sexual harassment. Employment Judge Joanna Wade said that the investigating panel treated the Claimant as a “scheming femme fatale”, perpetrating a female stereotype and essentially sided with the the Claimant’s line manager and his version of events.
Additionally, VolkerRail’s refusal to allow the Claimant to withdraw her resignation was found to amount to victimisation in that it was done as a result of her raising a complaint of discrimination.
“It is a very rare case where there are original allegations of harassment or discrimination, and a grievance or appeal process is also found to be discriminatory or harassing, rather than simply unreasonable or poor.” – Judge Wade
The level of compensation awarded in this case reflects the gravity of the Claimant’s losses, both financial and in terms of her health, which suffered dearly as a result of the harassment.
This case highlights the importance of conducting a full and proper investigation into employee grievances so that an informed decision, based on consideration of all the relevant facts, can be made. In the absence of a reasonable investigation being conducted, the investigation and subsequent decision can be found to be discriminatory in themselves.
It also demonstrates the financial and reputational exposure that businesses can open themselves up to where investigating officers are not adequately trained on the handling of harassment and discrimination complaints. Complaints should be handled empathetically, having consideration to the mental state of both parties and ensuring they are supported throughout the process.
Key takeaways for employers
In light of these two decisions, we would make the following recommendations to employers when dealing with sexual discrimination and harassment complaints in the workplace:
|Take complaints seriously
|Ignore or dismiss complaints
|Handle complaints fairly and sensitively
|Make assumptions about either party to the complaint or the complaint itself
|Conduct a full and proper investigation based on consideration of all the relevant facts
|Treat any complainant less favourably as a result of their complaint
|Handle complaints as quickly as possible, keeping in mind the need to conduct a full and proper investigation
|Rush the investigation process without adequate consideration of all the facts
|Keep the complaint as confidential as possible
|Ensure line managers are trained on the handling of complaints
|Try to resolve the issue in a manner that isn’t in line with company policy or procedure
|Ensure all anti-harassment and discrimination related policies are up to date and easily accessible
|Allow the company’s anti-harassment and discrimination policies to become outdated
- Olivia Boyle is a solicitor in A&L Goodbody’s Belfast office.