In the latest of our series of posts on Employment Tribunal cases from the archives, we take a look at the Employment Tribunal claim of Dos Santos v Preview Services Ltd ET/2700170/10. In this case the Employment Tribunal held that one sexual remark did not, on the facts, constitute sexual harassment.
The facts in Dos Santos v Preview Services Ltd
Mrs Dos Santos worked at Preview Services Ltd as a document scanner from October 2007 to November 2009. During the course of her employment she raised certain complaints that she claimed were not properly addressed by the company, including a request to change her shift hours, that a supervisor had been “rude and patronising” to her, that she had been refused assistance by a member of the IT department, that she had asked for, and been refused, an unpaid leave of absence, and that a supervisor shouted at her in front of colleagues. The relevant supervisor subsequently apologised to Mrs Dos Santos
After the apology Mrs Dos Santos wrote a letter to management to thank them for following the grievance procedure and to accept the apology. She wished to give this letter to management by hand but did not have an envelope; she therefore approached a supervisor, Mr MacDonald, and said “can I ask you a favour?”, with the intention of asking for an envelope. Mr MacDonald replied “as long as it’s not a sexual favour”.
Mrs Dos Santos was offended by Mr MacDonald’s remark but did not complain at the time; she later stated that she did not complain as she didn’t want to be seen as a “troublemaker”.
The next week a manager at Preview Services Ltd asked Mrs Dos Santos to attend a capability meeting. This was the second capability meeting that Mrs Dos Santos had attended and it related to allegations that she had not been paying attention to her computer screen. She was taken ill shortly before the capability meeting and was subsequently signed off work sick.
A number of weeks later, after the capability process had been delayed by Mrs Dos Santos’ illness and a cancellation by a manager, Mrs Dos Santos submitted a number of complaints (including a complaint regarding Mr MacDonald’s comment). The manager at the capability proceeding refused to deal with the complaint at the capability hearing and stated that it should be dealt with in a separate grievance procedure. Mrs Dos Santos resigned the next day.
Mrs Dos Santos subsequently made an Employment Tribunal claim for constructive dismissal, sexual harassment, and direct sex discrimination.
The Employment Tribunal’s decision
The Employment Tribunal rejected all of Mrs Dos Santos’ claims.
With regards to her constructive dismissal claim, the Employment Tribunal held that Preview’s conduct had not been sufficient to constitute a repudiatory breach of her contract of employment; the Employment Tribunal in fact held that the company had “worked hard with her to meet almost every request she made” and had dealt with her complaints in a reasonable fashion. The Tribunal also found that the fact that she had not complained about Mr MacDonald’s conduct immediately meant that she could not have seen this as a sufficient reason for her resignation.
The Employment Tribunal also rejected Mrs Dos Santos’ sexual harassment and direct sex discrimination claims, holding that although Mr MacDonald’s remark was “possibly unwise”, the only way it could reasonably be viewed was as a joke between colleagues with a long-term professional relationship. The Tribunal held that Mrs Dos Santos’ reaction to the comment was excessive and that it was not, objectively, sufficient to constitute harassment.
Our solicitors’ comments
Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This is a case which, of course, turns on its own particular facts: Mr MacDonald’s comment was, according to the Tribunal, on the ‘low end’ of the spectrum of offensive behaviour in the workplace and there was no aggravating conduct by Mr MacDonald (for example, further comments, a request for a sexual favour, or an obscene hand gesture). However, it is well-established that in the right circumstances a one-off act of unwanted sexual conduct can constitute sexual harassment.”