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Issue 46 (May 2000)

Contents

Sex harassment: EAT goes further
Watch your mouth
Best of both worlds
Employer to foot privacy bill
Totting it up: calculating compensation
Swedes and Germans in penalty shoot out
Adding insulting amount to injury

 

Sex harassment: EAT goes further

Driskel v Peninsula Business Services IRLR 2000 151

The recent Employment Appeal Tribunal decision in Driskel v Peninsula Business Services contains useful guidance for cases of sexual harassment. Precisely because sexual harassment is not defined nor even referred to in the Sex Discrimination Act 1975, there have been a number of Tribunal cases which appear to struggle in reconciling the statutory definition of direct sex discrimination with incidents of sexual harassment.

The definition of direct discrimination involves a comparison of the way in which people of one sex are treated in comparison with the other sex. This is largely inappropriate in cases of sexual harassment where generally it is a male harasser treating women in a sexually intimidatory manner, in a way that simply would not apply to another man.

Ms Driskel was employed by employment law consultants Peninsula Business Services, as an advice line consultant. Her department head, Mr Huss, subjected her to sexual banter and sexual comments, and initially she did not register any express objection.

Then in July 1996, she was interviewed by Mr Huss for a promotion. On the day before her interview, Mr Huss told her that she should wear a short skirt and a see-through blouse showing plenty of cleavage.

Following the interview, she raised a formal complaint of sexual harassment. Her complaint was rejected by the Director. Mrs Driskel then refused to return to her job unless Mr Huss was moved. The firm's evidence to the Tribunal was that there was nowhere that he could be moved so as to be away from her, so that effectively either she had to be dismissed or he did. The firm decided to dismiss her.

Mrs Driskel lodged a Tribunal claim for sex discrimination and unfair dismissal. The Employment Tribunal found against her on both. In relation to the sex discrimination case, they concluded that viewed in isolation each incident did not amount to sexual harassment because, essentially, the remarks were just intended by Mr Huss to be flippant comments to which Mrs Driskel had not objected. The Tribunal placed some weight on the fact that he also made similarly vulgar remarks to his male colleagues.

There was also no unfair dismissal, since the Company had genuinely investigated the complaint and had been forced by Ms Driskel into an unacceptable impasse of having to dismiss either him or her. In these circumstances her dismissal was not unfair.

The Employment Appeal Tribunal strongly criticised this decision. They decided that a sexual harassment case should not be broken down into each individual incident to assess whether each incident did or did not amount to sexual harassment. The guidance of the Court of Appeal in King v Great Britain - China Centre 1991 IRLR 513 should be followed. The duty on the Tribunal is to hear all the evidence and then assess whether or not they should draw an inference of discrimination. Incidents should not be analysed in isolation.

In relation to the Tribunal's assessment of the pre-interview comments of Mr Huss, the fact that his remarks were intended to be flippant "entirely misses the point. What is relevant is that by this remark (flippant or not) he was undermining her dignity as a woman, when, as a heterosexual, he could never similarly have treated a man."

It did not matter that Mr Huss had made similarly explicit comments to his male colleagues. Sexual banter by a heterosexual male to another heterosexual male cannot be equated to similar comments made to a woman. "Prima facie the treatment is not equal: in the latter circumstance it is the sex of the alleged discriminator that potentially adds a material element absent between two heterosexual men."

Likewise, Ms Driskel's initial failure to register her objection to Mr Huss' comments was not of overriding significance. It is for the Tribunal to reach an objective assessment as to whether there was sexual harassment or not. The Applicant's expressed objections, or lack of expressed objections, are only one factor. In cases of serious harassment, whether or not objections have been expressed is of little significance.

In cases where the acts complained of might not be obviously discriminatory, then any expressed objections may be very relevant in reaching a finding of harassment. In this case, however, the EAT took the view that Mr Huss' comments were potentially highly discriminatory, and accordingly Ms Driskel's failure to object should not have been an issue.