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    Sexual harassment?

    An employee claims that her manager’s aggressive tone amounts to sexual harassment.  He says it’s simply “justifiable criticism” as she’s not pulling her weight.  What is the tribunal likely to say?

    Clash of personalities

    Mrs Buchanan (B) was the sales and marketing manager at a large country house hotel.  The food and beverage manager, Mr Comerford (C), was of the same grade.  The two had what the tribunal later described as a “clash of personalities”.  When C was appointed general manager matters deteriorated even further.  B later complained that he didn’t listen to her suggestions; insulted her on numerous occasions (including in public) and adopted an aggressive tone.

    This is (not) sexual harassment!

    After going off sick, B resigned and brought claims for constructive dismissal and sexual harassment.  After looking at the evidence, the tribunal concluded this was a case of “six of one, half a dozen of the other”.  It decided that C genuinely believed she was under-performing and noted her lack of preparation for meetings and failure to keep on top of her responsibilities.

    Equal blame.  But attention was also drawn to the fact that C had become aggressive with B.  Here, the tribunal accepted that he often shouted at her and acted in an insulting way.

    Not on grounds of sex

    At the time this case was dealt with, the law said that “unwanted conduct” had to be “on the grounds of sex” for it to amount to sexual harassment.  The tribunal pointed out that whilst C’s conduct might have been “unwanted” and created an unpleasant working environment, it wasn’t connected to her sex.  Therefore, C’s behaviour didn’t amount to sexual harassment, but it was damaging to the working relationship. 

    Constructive dismissal element

    The tribunal, however, felt this was so bad that it had destroyed the “mutual trust and confidence” between the parties.  For this very reason B’s constructive dismissal claim succeeded.  This case is a clear reminder that some employees will always play the “discrimination card”; either from a genuine belief that they’ve experienced some form of discrimination – such as sexual harassment – or because they know that compensation from this type of claim in unlimited.

    Note:  The maximum compensation payable for a constructive dismissal claim is currently £63,500.  However, the average award in 2009/10 was £9,000.

    Legal changes

    Under the Equality Act 2010, sexual harassment now occurs where unwanted conduct is “related to sex”.  However, if the tribunal were looking at this case now, the employer is still likely to win his element of B’s claim as this new definition is unlikely to apply.

    Risk.  Had C used any inappropriate or sexist language during one of his outbursts the case might easily have gone the other way.  This type of comment is dangerous, particularly if made in front of other staff or the public.

    Tip.  B’s employer knew about the personality clash, and might have avoided her claims altogether had it encouraged the parties to try to resolve their differences amicably, e.g. via mediation.  This process can’t be forced, but it’s worth suggesting.

    Provided that no inappropriate or sexist comments have been directed at the employee, this won’t amount to sexual harassment.  But the danger is that it could support other claims such as constructive dismissal.  Where there is a clash of personalities between two individuals, mediation could nip problems in the bud.

    “Tips & Advice (Personnel)”: 25.11.10