18th September 2019 ❘

Can inappropriate comments made without intention to offend be considered sexual harassment?

The female claimant, Ms Prewett, managed a pub owned by the respondent, Green King Services Limited. After the pub failed a food hygiene audit, two male managers, Mr Bentley and Mr Gaunt, visited them pub to discuss remedial measures.

During this meeting, Mr Bentley and Mr Gaunt shared a joke, using a word which was a slang term both for a kind of food, but also for a part of the female anatomy. The Claimant was not aware of the definitions at the time, but was later informed by a colleague and by her daughter, who googled the term.

Mr Bentley also visited the pub again and when asked by Ms Prewett “What do you want to see first?” he responded “Depends what’s on offer” and he then touched Ms Prewett’s shoulder.

A month later, another manager visited the pub and when he mentioned Mr Bentley, Ms Prewett became upset. She then called Mr Gaunt and notified him of her intention to resign due to sexual harassment by Mr Bentley. She also raised a formal grievance, but both the grievance and her subsequent appeal were rejected.

Ms Prewett then issued a claim for sexual harassment and unfair dismissal. The ET disagreed with the conclusion of the respondent’s investigations into the grievance and decided that Ms Prewett had been sexually harassed and awarded her £5,000.

The case demonstrates how one-off inappropriate comments may meet the definition of sexual harassment under the Equality Act 2010, even if there is no intention to offend and even if the victim does not voice their objection to the behaviour straight away. Although the ET accepted that Mr Bentley’s comments were intended as humour, the comments “violated the claimant’s dignity” and “created a hostile work environment” for her.

Does a claimant in the employment tribunal have the right to have a judgment withheld from the public domain?

Not as a matter of course, concluded the Court of Appeal (CA) in L v Q Limited.

In this case, the CA held that the Employment Tribunal (ET) is not permitted to rely on Rule 50 of the Employment Tribunal Rules to order that a judgment must not be published on the public register unless exceptional circumstances require it. The CA was unwilling to speculate on what those circumstances would look like.

The claimant had brought claims of disability discrimination, harassment and victimisation against his employer. The claimant’s solicitors requested that the final hearing take place in private, that the ET’s judgment be anonymised and also that the judgment should not be placed on the public register. The ET granted those applications.

The Employment Appeal Tribunal overturned the ET’s decisions regarding non-publication of the judgment and also the ET’s decision to disguise the nature of the claimant’s disabilities in the judgment, but it did accept the ET’s decision that the parties be anonymised in the judgment.

On appeal, the CA, considering only the issue of publication and anonymisation, concluded:

  • while there may be circumstances in which an ET judgment can be kept secret, the CA found it hard to imagine the circumstances in which an ET could properly withhold publication of a judgment altogether
  • the claimant’s disabilities should not be disguised in the judgment because their omission would “fundamentally undermine understanding of the [ET] judgment”.

This case clarifies that non-publication of a judgment is unlikely to be an avenue open to parties where a claim proceeds to a final hearing. Although anonymisation of judgments may be possible, transparency of judicial decisions is a central principle of the law.

Can a claimant rely on ignorance when issuing an Employment Tribunal claim of unfair dismissal outside the three month limitation period?

It depends, according to the Employment Appeal Tribunal (EAT) in Inchcape Retail Limited v Shelton.

In this case, the claimant, Mr Shelton, was summarily dismissed for gross misconduct. Following an internal appeal hearing, his employer, Inchcape Retail, decided to investigate further, during which time the standard three-month time limit for bringing an Employment Tribunal claim of unfair dismissal expired.

Under s111(2) of the Employment Rights Act 1996, the Employment Tribunal (ET) may not consider a claim of unfair dismissal unless the claim is either a) received by the ET within three months of the effective date of termination or (b) if not received within that initial three month period, it is received within such further period as the ET considers reasonable, provided that the ET is also satisfied that it was not reasonably practicable for the claim to be lodged with the ET before the end of the initial three months.

While awaiting the outcome of the internal appeal process, Mr Shelton contacted ACAS and subsequently submitted his claim to the ET. The ET found that in the circumstances Mr Shelton’s ignorance of the three month time limit was reasonable and justifiable and his unfair dismissal claim was allowed to proceed.

The employer appealed and the EAT decided that in cases such as this, the ET was required to make case-by-case findings of fact regarding what steps a claimant should reasonably be expected to take to find out about the enforcement of his rights. The EAT decided that the ET had not considered this question sufficiently and so the appeal was allowed and the EAT sent the matter back to the ET for a re-hearing.

Is the fact that a worker reasonably believes that a disclosure is in the public interest enough to entitle them to protection as a whistle-blower?

Yes, according to the Employment Appeal Tribunal (EAT) in Okwu v Rise Community Action.

Ms Okwu worked for a small charity providing support for individuals affected by domestic violence, female genital mutilation and HIV. Ms Okwu’s three-month probation period was extended for a further three months due to issues with her performance. Ms Okwu wrote to her employer alleging that they were in breach of data protection law by failing to have sufficient procedures in place for the handling of sensitive data. Ms Okwu was subsequently dismissed on the grounds of unacceptable conduct and unsatisfactory performance.

Ms Okwu claimed automatic unfair dismissal, claiming that she had been dismissed for making a qualifying disclosure protected by s43B of the Employment Rights Act 1996. Her claim was rejected by the Employment Tribunal (ET). The ET decided that the disclosures Ms Okwu made were not in the public interest and therefore did not provide her with whistle-blower protection.

Ms Okwu appealed and the EAT decided that the ET had been wrong in its approach and had failed to decide whether Ms Okwu had a “reasonable belief” that her disclosures were in the public interest. Although Ms. Okwu’s disclosures were made primarily because of the assessment of her performance, it did not necessarily follow that she did not reasonably believe that her disclosures were in the public interest.

This case confirms that when determining whether a disclosure is in the public interest for the purpose of being a qualifying disclosure under section 43B Employment Rights Act 1996, it is sufficient that the employee or worker has a reasonable belief that it is in the public interest, even if in fact it is not and/or the allegations are untrue.