redmans-blog-analysisIn the case of Smith v Renrod Ltd ET/1400166/2015 an Employment Tribunal held that a female employee had been sexually harassed by her line manager, even though the female employee engaged in the culture of ‘sexual banter’.

Ms Smith was employed as a sales executive at Renrod Ltd, a car dealership from 22 February 2013. In February 2014 Ms Smith alleged that she had been bullied at work by Mr Snowball, her line manager, and a meeting was held to discuss this. A mediation between Mr Snowball and Ms Smith was subsequently arranged, with this meeting taking place on 17 February 2014. This meeting appeared to have been successful and Ms Smith was encouraged to raise any further concerns that she had.

Following the mediation there was a breakdown in the relationship between Ms Smith and Mr Snowball in 2014, with Ms Smith alleging that she was being treated harshly by Mr Snowball and that he was continuing to bully her. One altercation between Ms Smith and Mr Snowball arose over Mr Snowball remonstrating with Ms Smith over the length of a lunch break she had taken, with Ms Smith allegedly responding to Mr Snowball that he would be going to prison over alleged criminal conduct on his part.

On 29 September 2016 Ms Smith raised a formal written grievance, detailing 42 examples of conduct (including sexual harassment) by Mr Snowball that she said had made her life intolerable at Renrod – these included:

  • That Mr Snowball had told her that he had not heard what she had said because he was “thinking about picking [her] up and fucking [her] on the desk;
  • That he was attempting to kiss her;
  • That he was pestering her about her private life; and
  • That he had made a comment that Ms Smith must be like “a wizard’s sleeve”

A grievance investigation was by Ms Shocklidge, a colleague of Ms Smith’s. Mr Snowball denied making the comments alleged and Ms Shocklidge concluded that the specific comments alleged by Ms Smith had not been made. Ms Shocklidge did, however, conclude that there was a culture of sexual banter in the workplace and that both Mr Snowball and Ms Smith were willing participants in that banter.

The outcome of the grievance process was that Ms Smith’ complaints of sexual harassment were not upheld. Ms Smith appealed against the outcome of her grievance but her appeal was rejected.

A disciplinary procedure was initiated in January 2015 against Ms Smith on allegations that she had engaged in sexual conduct in he workplace, that she had taken a smoke break without her consent and had threatened her manager, and that she had participated in sexual innuendo and bullied other staff members. This procedure resulted in Ms Smith being dismissed for gross misconduct on 6 February 2016 on the strength of the allegations that she had engaged in sexual activity on the business’ premises and in a company vehicle; Ms Smith had, however, already submitted her notice of resignation on 4 February 2015. Ms Smith appealed the decision to dismiss her for gross misconduct, an appeal meeting was held in her absence on 13 March 2015, and the appeal was dismissed on 10 April 2015.

Ms Smith brought Employment Tribunal claims for constructive dismissal, direct sex discrimination, sexual harassment, dismissal due to protected disclosure (or ‘whistleblowing’), and breach of contract against Renrod Ltd.

The Employment Tribunal dismissed all of Ms Smith’s claims except for her claim for sexual harassment, which it upheld – this finding was made based on a text message that Ms Smith submitted during the Employment Tribunal (but had not made available during the grievance process with her employer) that evidenced that Mr Snowball had made the “fucking on the desk” comment in 2014. The Tribunal came to this conclusion despite a finding that Ms Smith had participated in and even initiated sexual banter in the workplace, as it found that, given car dealership was a male-dominated industry, it would have been difficult for Ms Smith not to feel compelled to participate in (and not obviously take offence at) language and conduct which was nevertheless demeaning and insulting.

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “One of the crucial issues in a claim for sexual harassment was whether any alleged sexual harassment was ‘unwanted’ or not – if a respondent can show that an employee who is claiming sexual harassment participated in or initiated sexual conduct in the workplace then this can be damaging to the prospects of success of a claim for sexual harassment. However, what this case shows is that the Tribunal will take into account the context of the industry that the claimant is working in when determining whether sexual conduct was ‘unwanted’ or not.”

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Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees

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