Does asking a female colleague why she is rejecting a job offer abroad, given that she has ‘no children, is not married and doesn’t have a boyfriend’ amount to sexual harassment per s.26 EqA 2010?
No, said the Employment Tribunal (ET) in N Sithirapathy v PSI CRO
The Claimant argued the comments were related to her sex, were unwanted and had the purpose and effect of violating her dignity and creating a hostile environment. Thus, she posited, harassment was established.
However the ET dismissed her claim, stating that the words were ‘blunt’, ‘clumsily put’ and ‘awkward’ but that ‘legal liability should not be imposed on every unfortunate phrase.’ Judge Hawksworth continued that we must ‘bear in mind the importance of not encouraging a culture of hypersensitivity.’
His words were headline grabbing, and it was one of the most widely reported first instance ET cases in a while, not least because it feeds into an anti-woke narrative. But, in reality, it’s nothing new. The comments were lifted from obiter phrasing used by an EAT judge 2014, which in turn echoed the sentiments of CoA judge Elias LJ in Grant v HM Land Registry 2011.
In Grant, the CoA held that disclosure of an employee’s sexual orientation did not amount to harassment where the employee had already informed other colleagues of his sexuality. Elias LJ remarked that the words ‘violating dignity’, ‘intimidating, hostile, degrading, offensive’ are significant and that tribunals ‘must not cheapen their significance’ because they are ‘an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.’
Ultimately in Sithirapathy, the ET aligned with the CoA in Grant by finding that while the Claimant did genuinely feel her dignity had been violated by the comments, she was unreasonably prone to take offence and thus harassment was not made out.
Although it is a first instance ET decision which is non-binding on higher courts and may well be appealed, it is a reminder that the bar for being successful in an harassment claim is high. The judgment will certainly make for welcome reading for employers across England and Wales.
This blog was prepared by Jack Dooley, Paralegal at didlaw.