In this alert, Partner Merrill April outlines how to analyse whether you have experienced harassment or sexual harassment as a Senior Executive by reference to the legal requirements.
There are three definitions of harassment contained in section 26 of the Equality Act 2010:
1. General definition, s26(1):
A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:
- Violating B’s dignity; or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
The relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation (s26(5)).
2. Conduct of a sexual nature, s26(2):
A also harasses B if A engages in unwanted conduct of a sexual nature, and the conduct has the purpose or effect referred to in the general definition. This is usually referred to as sexual harassment.
3. Rejection of or submission to conduct of a sexual nature, s26(3):
A also harasses B if:
- A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex.
- The conduct has the purpose or effected referred to in the general definition.
- Because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.
Sithirapathy v PSI CRO UK Ltd and others
A recent tribunal decision analysed the claims brought by Miss Sithirapathy, (the claimant) who at the time was legal counsel at PSI CRO UK and had made various complaints which included unfair dismissal; wrongful dismissal; unauthorised deduction from wages; breach of contract; age discrimination; sex discrimination; victimisation; sexual harassment; and harassment related to age, sex and sexual orientation.
The claimant’s employment began on 1 August 2014. In 2016, Mr Schmidt (the Respondent’s acting country manager) offered the claimant a role at the company’s head office in Switzerland with a salary of 120,000 Swiss francs. The claimant complained that Mr Schmidt asked how old she was and when she informed him that she was 27 he is alleged to have said that “your age will prevent you from commanding a higher salary”. The claimant subsequently declined the offer of employment for “personal reasons.” Mr Schmidt asked her what those personal reasons were, stating that “you are not married, you don’t have children and you do not have a boyfriend”. The tribunal were satisfied in this instance that Mr Schmidt was not commenting on the claimant’s relationship status or sexual orientation but was seeking to convey his understanding about the claimant’s family commitments in the UK.
The claimant also stated that Mr Schmidt told her of an anecdote about the Swiss office’s “tolerance” of a lesbian employee. The claimant was shocked and made uncomfortable by the comments and was unaware of how Mr Schmidt knew about her personal life and such personal information, claiming that she was harassed on the grounds of sexual orientation by perception. However, the tribunal were satisfied with Mr Schmidt’s explanation that he was trying to explain that an individual’s sexuality or other personal circumstances were not an issue for the company, but that he was clumsy with his explanation.
In late 2016, the claimant sought promotion to senior legal counsel level but was informed by Ms Ruf, the head of legal, that she was not ready for promotion as she was not performing at the same level as those in the senior legal counsel positions. This was further supported by her appraisal in March 2017, in which the claimant was told she was too young and did not yet have enough experience in order to merit a promotion. As a result of this, the claimant complained of being discriminated against because of her age.
In May of the same year, the complainant was offered a new, non-legal role, assisting Mr Schmidt within the parent company in Switzerland which was due to begin in September of that year. Having accepted this role, the claimant’s employment with the UK subsidiary was terminated shortly before she began her role in Switzerland. Despite the claimant’s assertion that this was done in order to prevent her from having continuous service, the tribunal were satisfied that this was not the case. The tribunal found that it was clear that there was no pressure on the claimant to accept the new role or sign the new contract, and it seemed very unlikely that, to avoid a complaint of unfair dismissal, the respondent would have gone to the trouble of arranging a new role for the claimant in Switzerland.
The claimant’s employment in Switzerland, which begun on 4 September 2017, later came to an end in October 2017 as she was dismissed due to a reorganisation in the team. The claimant subsequently enquired as to whether she could return to her legal counsel role in the UK but was told this was not possible, as the position had already been filled.
The claimant subsequently brought a claim in the Cantonal Court of Zug, Switzerland, which held that there had been no breach of Swiss law.
Employment Tribunal findings
Wrongful and unfair dismissal: this aspect of the claimant’s claim was dismissed on the basis that the claimant’s employment ended by way of mutual agreement, as opposed to being dismissed.
The claimant’s claims for discrimination on the grounds of sex, age and sexual orientation were also dismissed as were her claims for unlawful harassment and breach of contract. Employment Judge Hawksworth stated that the comments made by Mr Schmidt “were unfortunate and awkward. However, we bear in mind the importance of not encouraging a culture of hyper-sensitivity or of imposing legal liability to every unfortunate phrase” and concluded that “taking into account the context of the discussions, these comments did not cross the line such that they amounted to unlawful harassment”.
The judge also found that despite the claimant’s allegations, she had not been treated unfavourably in her appraisal with Ms Ruf, stating that “the same comments would have been made to someone who was at the same career stage as the claimant, whatever their age. Using the words ‘still young’ in this context was another way of saying that the claimant was at the beginning of her professional career and was not a detriment to the claimant.”
Key Considerations for Senior Executives
Whilst this case does not set a precedent and is not binding on other courts, it is a timely reminder to would-be claimants that individuals must carefully identify the correct legal test when considering a claim for discrimination or harassment, to avoid the claim being struck out or a finding by the tribunal that is not in their favour. It is also vital that senior managers consider how language used in the workplace could potentially impact their colleagues, damage trust, and potentially give rise to claims which must then be defended.
Key points to take into consideration for the general definition of harassment include:
- A one-off incident can amount to harassment.
- The victim need not have made the perpetrator aware that the conduct was unwanted.
- Conduct can amount to harassment if it is related to a relevant protected characteristic. This includes conduct engaged in by reason of a protected characteristic and conduct that is related to a protected characteristic because of the form it takes.
- The Equality Act protects an employee against harassment based on someone else’s protected characteristic or based on the perception that they have a protected characteristic.
- There is no need for a comparator, i.e., an individual does not have to show that they were, or would have been, treated less favourably than another person.
- Marriage and civil partnership, and pregnancy and maternity, are not relevant protected characteristics for harassment purposes. However, unwanted conduct related to these characteristics could amount to sex or sexual orientation harassment.
For Senior Executives encountering uncomfortable situations at work, expert advice prior to resigning or taking any steps to bring claims or negotiate a settlement can prove invaluable. Similarly Senior Executives concerned about whether their behaviour may cross the line into unlawful action should consider taking expert advice before embarking on difficult conversations in order to protect themselves and their organisations.
If you are a senior executive or founder considering bringing a claim following harassment or sexual harassment, you have any other questions arising from this alert, or for specific legal advice on particular circumstances, please contact our Partner Merrill April, who specialises in employment and partnership issues for multinational employers, senior executives, partnerships and partners.
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