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.
t: 0118 989 8151
Trainee Solicitor, Employment Law
Latest News & Insights
Case Update – Enforceability of Non-Compete Clauses
The General Principle Non-compete provisions which restrict a former employer for working for a...
All in a Day’s Work: Menopause at work
This month's episode covers menopause in the workplace. We will discuss how employers can help...
Coronation Bank Holiday – the right to a day off?
As has been widely anticipated and much discussed across the country, on Saturday 6th May 2023,...
All in a Day’s Work: Employment Podcast Series
Our Employment team bring you a monthly podcast covering all aspects of Employment law for businesses and individuals. You can browse our podcasts below…
All in a Day’s Work: Changing Contractual Terms
The episode will focus on how an employer can change the terms of an employee’s employment and what they need to be aware of.
All in a Day’s Work: Discretionary Benefits
The episode will focus on what discretionary benefits employers can offer and how those benefits can sometime become contractual entitlements.
All in a Day’s Work: Has the HR Grinch stolen Christmas?
We will be looking at why Christmas can be such a difficult period for employers and why Christmas parties in particular can be so tricky
Top Legal Insights
Material Breach of Contract
What is a ‘material’ breach of contract by a party to a commercial contract? This is a critical issue regularly considered by the courts. What constitutes a material breach and what are the remedies?
Commercial Lease: The Financial impact on Landlord and Tenant
Coronavirus (COVID-19) and the restrictions now in place to control its spread, are having a significant effect on many business sectors.
Divorce and Family Law
Divorce in Lockdown: Can I get some discreet legal advice?
We have spoken to clients who are unfortunately experiencing some family issues, and would like to obtain expert legal advice, yet don’t know how...
Land & Property Dispute
Restrictive Covenants – The Price of Modification
Having identified that your land is burdened by a restrictive covenant and for the purposes of this article the covenant in question will be that only one residential building can be erected on the land. What do you do next?
Award winning legal advice
Herrington Carmichael offers legal advice to UK and International businesses as well as individuals and families. Rated as a ‘Leading Firm 2023’ by the legal directory Legal 500 and listed in The Times ‘Best Law Firms 2023’. Herrington Carmichael has offices in London, Farnborough, Reading, and Ascot.
Brennan House, Farnborough Aerospace Centre Business Park, Farnborough, GU14 6XR
Reading (Appointment only)
The Abbey, Abbey Gardens, Abbey Street, Reading RG1 3BA
Ascot (Appointment only)
102, Berkshire House, 39-51 High Street, Ascot, Berkshire SL5 7HY
London (Appointment only)
60 St Martins Lane, Covent Garden, London WC2N 4JS
Commercial Property Lawyers
Dispute Resolution Lawyers
Divorce & Family Lawyers
Immigration Law Services
Private Wealth & Inheritance Lawyers
Startups & New Business Lawyers
Please be aware that we have no plans to change our bank details. If you receive any indication that any of our bank details have changed please contact us before sending us any funds. We take no responsibility for monies you transfer into the wrong bank account.
© 2023 Herrington Carmichael LLP. Registered in England and Wales company number OC322293.
Herrington Carmichael LLP is authorised and regulated by the Solicitors Regulation Authority with registration number 446245.