In this article Chris Hadrill, a specialist employment solicitor at Redmans, examines whether as single remark or incident at work can constitute sexual harassment for the purposes of section 26(2) of the Equality Act 2010.
The recent Court of Appeal case of BAE Systems (Operations) Ltd v Konczak  EWCA Civ 1188 concerned a finding by an Employment Tribunal that an employee had been subjected to sex-related harassment for the purposes of the Equality Act 2010 when a manager had made a comment that ‘women take things more emotionally then men while men tend to forget things and move on’. This case, which has been the subject of a number of appeals by both parties, raises an interesting issue: can a single incident of sexual conduct constitute sexual harassment for the purposes of the Equality Act 2010? The answer is, as it ever was, “it depends”.
The Employment Appeal Tribunal case of Bracebridge Engineering Ltd v Darby  IRLR 3 appears to be the first case in which the Tribunal grappled with what constituted sexual harassment: could a single incident of sexual conduct amount to ‘harassment’ for the purposes of the legislation as it was then, or did it have to be a course of conduct? The EAT in this case held that whether a single incident of sexual conduct can constitute sexual harassment depends on the context and circumstances of the case, but that a single incident could potentially constitute harassment; in Bracebridge the Tribunal found that an incident in which a male manager touched a female employee’s ‘private parts’ in the workplace without her consent was serious enough to constitute sexual harassment for the purposes of the Sex Discrimination Act 1975 (“SDA 1975”) (which has now been consolidated into the Equality Act 2010), rejecting the Respondent’s argument (with some disdain, it might be added) that only a course of conduct could constitute harassment.
The Employment Appeal Tribunal returned to this question in Insitu Cleaning Co Ltd & Anor v Heads  UKEAT. In Insitu the EAT, applying Bracebridge, upheld the Tribunal’s ruling that the comment “hiya, big tits” from a male director to a female employee was serious enough to constitute sexual harassment (again, under the SDA 1975) – the EAT stated that the context and circumstances of the event, including the effect on the female employee, had all been correctly taken into account: the conduct was unwanted, was sexual in nature, and reasonably had the effect of violating the female employee’s dignity.
As the above case law suggests, however, there may be circumstances where a single sexual remark is not serious enough in nature to constitute sexual harassment – the Employment Tribunal case of Dos Santos v Preview Services Limited ET/2700170/10 is a good example of a circumstance in which a single sexual remark was not sufficient to constitute sexual harassment. In this case the Employment Tribunal held that the comment “as long as it’s not a sexual favour” by a male manager in reply to a female employee asking for a favour (for, in fact, an envelope) did not objectively constitute sexual harassment. The Tribunal took into account the context of the long-standing professional relationship between the manager and the female employee, the fact that the comment had been intended to be a joke (albeit a poor joke), and that there had been a reasonably long delay before the female employee complained about the remark.
In order for a remark to constitute sexual harassment under section 26(2) of the Equality Act 2010 it must be established that:
- A remark, gesture or act of a sexual nature has been undertaken;
- That the relevant conduct was unwanted in nature;
- That the conduct had the purpose or effect of violating the relevant person’s dignity; or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
In most cases of sexual harassment it will normally be clear that the purpose of the sexual conduct was intended to harass the other party but, in cases where it isn’t so clear, one must examine whether it was objectively reasonable for the complainant to have been offended by the comment (Richmond Pharmacology v. Dhaliwal  UKEAT 0458_08_1202).