It was reported this week that a City Executive who brought a claim worth £4million for sexual harassment and sex discrimination against her financier boss had her claims dismissed by the Tribunal who found she was “not a persuasive witness” and that her evidence was “exaggerated”.
On the face of it, her claim looked to have strong prospects, particularly given that her boss had admitted to the Tribunal that he had referred to her as "decorative", told her jokes about "dumb blondes" and also advised her to "work more and dress less". He also acknowledged that he sent her and other female colleagues, whom he referred to as "Mark's Angels", innuendo-laden emails containing jokes about topless women, sex and Viagra.
Given these admissions, it may come as a surprise to some that she was unsuccessful and one may ask, “what do you have to do to win a claim for sexual harassment and discrimination around here?”
In order to succeed with a claim for sexual harassment in the Employment Tribunal, a Claimant must show that, on the grounds of sex, the harasser has engaged in unwanted conduct that has the purpose or effect of violating the Claimant’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment. Harassment may also occur where the harasser engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the same purpose or effect.
The Claimant’s treatment in this case may seem to fit in with the definition. However, a possible defence to a claim for sexual harassment is for an employer to argue that the Claimant was not offended, that the treatment was not unwelcome and/or that the Claimant engaged in such banter. In this case, the Tribunal concluded, “we do not accept the Claimant's evidence that witnessing this evinced feelings of disgust in her. Certainly, she did not raise it at the time or at any time afterwards”. In effect, the Tribunal found that the conduct did not have the required effect on the Claimant to amount to harassment. In other words, it did not believe her evidence that she was offended by it. The Tribunal was more persuaded by her boss’s evidence than the Claimant’s.
It is therefore important for employees to raise complaints, preferably in writing, about treatment they find offensive at the time or as soon as possible thereafter.
This case also highlights that even where a case may seem to have a strong chance of success from the outset, witness evidence is key and how a witness performs whilst giving evidence and under cross-examination is a factor that cannot be assessed at the outset. It is impossible to know whose evidence the Tribunal will prefer on the day and who comes across as a more credible witness and as such, there is always a risk for both sides.
Submitted by Anthea Christie
