There have been a number of reports recently of the successful claim against Gartner UK Limited for sexual harassment and constructive dismissal.

This decision is a useful reminder to employers not only to ensure that they have in place effective and detailed policies and procedures and that all staff are adequately trained on diversity and equality in the workplace, but also highlighted how the use of certain language or phrases evolves over time, such that comments that might have previously considered acceptable can now fall foul of the Equality Act 2010 (EqA), which makes such training and documentation all the more important.

Facts

While the focus of many reports on this case were on the use of the phrase ‘Good Girl’, there were actually numerous serious and concerning aspects of the case bought by Ms Fricker against Gartner.

At the time she was employed by Gartner, Ms Fricker was a 39 year old single mother.

While working for Gartner, her line manager, Giuseppe Ajroldi, initially started commenting on her appearance and weight with a view to pressuring her to use a ‘more beautiful’ picture for her LinkedIn and internal profile. He then began to repeatedly refer to her as a ‘good girl’ despite Ms Fricker showing her irritation towards this and referring to his comments as ‘condescending’.

In August 2018 Mr Ajroldi insisted on joining Ms Fricker on an overnight business trip where he made unwanted sexual advances towards her including attempting to kiss and touch her in her hotel room. He was apologetic the following morning and promised it would never happen again when Ms Fricker said in very clear terms that this behaviour needed to stop.

After rejecting his sexual advances Mr Ajroldi’s relationship with Ms Fricker changed. He became very aggressive towards her which was reflected in WhatsApp messages. Ms Fricker also contended that Mr Ajroldi soured relationships with other senior colleagues.

Mr Ajroldi then attempted to subject Ms Fricker to an unwarranted performance improvement plan (PIP).

When Ms Fricker raised concerns about the unjustified PIP with HR and Mr Ajroldi’s manager and ultimately raised a grievance, the Tribunal noted that in the contemporaneous documents it had seen, it detected a closing of ranks in support of Mr Ajroldi, combined with an attitude of nothing that wrong really happened, but if it did then Ms Fricker brought it on herself.

The Company’s failure to properly address the sexual harassment from Mr Ajroldi was noteworthy and the Tribunal was struck by the Company’s hostility to Ms Fricker, which seemed prevalent at both the hearing and within the documents.

The Tribunal also found that there was a broader male-orientated and toxic environment within Gartner, with Ms Fricker also being referred to as an ‘oxygen thief’ by her male colleagues after her complaints became known and the Tribunal found it astonishing that this was not seen nor was there any discernible commitment to address this.

Ultimately Ms Fricker resigned from her employment claiming she had been constructively unfairly dismissed. She also claimed that she had been victimised for making a complaint of discrimination, directly discriminated against on the grounds of her sex and subject to harassment on the grounds of her sex and/or sexual harassment.

The Tribunal upheld her claims for constructive dismissal and harassment.

The Law

A claim for sexual, as distinct from sex-related, harassment, needs to establish that the company or its employee or representative, engaged in unwanted conduct of a sexual nature, and is conduct of the purpose or effect of violating the claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.

The law says that an employee is dismissed by her employer for the purposes of claiming unfair dismissal if the employee terminates the contract under which they are employed (with or without notice) by reason of the employer’s conduct and repudiatory breach of contract.

Decision

The Tribunal found that Ms Fricker’s complaints of harassment were entirely credible. They accepted that the incidents complained of occurred and that they represented harassing behaviour. They found that it was self-evident that this was sexual harassment as it related to Ms Fricker’s appearance and Mr Arjoldi’s perception of her attractiveness.

What was also interesting was the Tribunal’s judgment specifically noted that language evolves over time. Words and phrases that might once have seemed harmless are now regarded as racial, homophobic and sexist slurs. Some phrases, whilst not regarded as taboo, are generally regarded as inappropriate in the workplace. In this case, the Tribunal held that referring to a woman in her late-30s with a school-age child as a “girl” was demeaning.

The Tribunal held that Mr Ajroldi was a mature man, and they did not believe that he would have referred to a female client or any other employee as a girl, so this was used to assert or reinforce his authority or power over Ms Fricker. There was no evidence that Ms Fricker or anyone else referred to men as “boys”, so, this was not jocular, particularly as Mr Ajroldi continued to refer to Ms Fricker as a girl after she objected and after she referred to him as a boy in an attempt to make him see how offensive she regarded this language.

In relation to the constructive dismissal claim, the Tribunal held that Ms Fricker had been treated poorly by the Company, whose employees sought to cover up the grievance complaints, particularly with regard to the instigation of the PIP. They accepted Ms Fricker’s criticism of the grievance and the grievance appeal and regarded this as demonstrating that the Company’s officers were committed to frustrate a proper outcome to Ms Fricker’s legitimate complaints.

Ms Fricker was found not to have waived these breaches because she regularly complained of matters and her complaints were still outstanding at her resignation.

The fact that Ms Fricker sought to secure alternative work before resigning was also not fatal to her claim, it merely reflected the economic reality of a single parent with responsibilities. It did not mean that Ms Fricker chose to leave freely (as opposed to resigning because of the company’s behaviour) nor did it mean that she affirmed the contract.

Summary

This case serves as a useful reminder to employers of the importance of having detailed and comprehensive polices, procedures and training in place. The Tribunal was particularly critical of Company’s attempt to pursue a reasonable steps defence in the circumstances where they found they merely ‘paid lip-service to the prevention of discrimination’.

The Tribunal confirmed that what amounts to reasonable steps to prevent the discrimination will depend upon the circumstances, but as a minimum this should be:

(a) the implementation and regular review of a properly drafted equal opportunities policy

(b) that the employer can demonstrate that steps were taken to ensure all employees and workers were aware of that policy

(c) that equal opportunities training was provided and regularly updated and

(d) there was an effective policy to deal with appropriate complains from employees or workers

Simply having an Equal Opportunities Policy is not enough. It needs to be more than just a policy.

The Tribunal also focused on a lack of training in respect of harassment. While there is evidence that Mr Ajroldi some received training in respect of harassment, this was “entry-level” and was not at all sophisticated. The training was not rigorous or likely to have been memorable, and there was not any follow-up or refresher training nor were updates given.

Now is a good time to consider when employers last reviewed and refreshed their policies or updated the training given to staff on equal opportunities.

For further information or to discuss the issues raised by this update, please contact our Employment Group on 01276 854663 or employment@herrington-carmichael.com.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

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