Can farfetched allegations still constitute sexual harassment at work?
Sexual harassment is where someone engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. A recent case has shown, however, that the Employment Tribunal will still apply a level of common sense when farfetched allegations are made.
Gasparovav v essDOCS EMEA LIMITED
In the case, the Claimant made a number of complaints during her employment but none related to sexual harassment. She later brought claims for direct discrimination, victimisation, breach of contract/wrongful dismissal and sexual harassment. The allegations of direct discrimination and breach of contract (relating to the non-payment of a contractual bonus) were the only ones upheld by the Tribunal.
The interesting thing about this case related to the claims of sexual harassment. The allegations of sexual harassment were initially made by the Claimant in a meeting with her employer in March 2021, before she submitted a detailed grievance in which she alleged that her manager, Mr Goulandris, wanted to have a sexual relationship with her and when she rejected his advances, he behaved badly towards her.
The allegations of sexual advances consisted of “chatting her up”, looking at her inappropriately and sending her emails with hidden references to sexual content. In one email, the manager used “xx”, “yy”, “????” and “ajg”. The Claimant believed that the “xx” were kisses, the “yy” referred to sexual contact of some nature and the “????” was her manager asking her when she would b ready to engage in sexual acts with him. The Claimant also believed that the “ajg” tag referred to “A Jumbo Genital”.
The manager denied any wrongdoing and said they all referred to the name of clients and that “ajg” was in fact his initials. The grievance outcome concluded that, although the manager had overstepped the mark in an aggressive response to the Claimant during one call, the allegations of sexual harassment, discrimination and victimisation were not upheld. The Claimant’s appeal was also dismissed.
The Claimant pursued the claim in the Tribunal and made additional allegations which had not been raised during the grievance process, stating she felt it would have been notoriously difficult to prove inappropriate sexual conduct. She stated she didn’t want to put herself through the stress, but when Mr Goulandris began to remove key responsibilities from her, she changed her mind. The Tribunal accepted this as a plausible explanation and would not base any of their findings of fact on the timings of complaints. They also stated that it would be common for people, who complain of sexual harassment, to delay in making complaints for a variety of reasons. Additionally, a Claimant’s version of events might not initially form a coherent narrative.
The unanimous judgment of the Tribunal was that the Claimant’s claim of sexual harassment was dismissed. It found that her account of events and her perception of these everyday events were skewed. They found that the Claimant demonstrated a tendency to make extraordinary allegations without evidence. The Tribunal concluded that there was no unwanted conduct of a sexual nature that had the prescribed purpose or effect towards the Claimant in this case.
The Claimant’s case was that all incidents of unwanted sexual conduct were overt and that he was a “rich and powerful man” who made it obvious by his conduct that he wanted her to offer to have sex with him. She went on to say that a man in his position was too clever to make overt advances, hence the ‘coded messages’.
As a result of this, the case rested on the Tribunal interpreting seemingly innocent interactions between the Claimant and Mr Goulandris, the most notable being two emails containing “xx, yy & ajg”, which the Claimant said was sexual content. The Tribunal stated that considering individual perceptions of behaviour, and the general context in which they occur, are relevant considerations when determining whether the Claimant would have interpreted any of these to be sexual advances. However, in this case, the Tribunal said that no-one other than the Claimant would have interpreted any of these things to be sexual advances.
This case serves as a reminder that not all cases of sexual harassment will turn on overt actions, and that the Tribunal will take into consideration subjective views of the Claimant in each case, but will also apply a common sense approach when reaching their decision. The Tribunal will be prepared to set aside an inconsistent timeline and delays in reporting allegations, when considering the substantive issues.
If you would like any assistance with anything discussed in this article please get in touch with our Employment team who will be happy to assist with any questions.
This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.
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