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In the case of A v Chief Constable of West Midlands Police UKEAT/0313/14/JOJ the Employment Appeal Tribunal (“EAT”) held that a female police officer had been sexually harassed by a male colleague when she informed him that she wished to end their sexual relationship yet he continued to contact her for two days after.

The facts

A, a young female officer in the West Midlands Police Force (“WMPF”), complained that she had been the subject of the unwanted attentions of a senior officer, B, between March 2009 and October 2011.

On 30 July 2011 A and B attended a work-related barbeque. C, a colleague of A’s whom was becoming close to A (and subsequently became her long-term partner), also attended, as did B’s long-term partner (“F”), who was concerned about B’s relationship with A. There was a confrontation between F and B, and the atmosphere between B and A became increasingly tense; A and B exchanged comments later that evening and there was some friction. However, A and B remained close until the end of October 2011.

In mid-September 2011 B helped A to apply for a post in the offender management team, as it was normal practice for a supervising sergeant to assist officers who are applying for new roles. They collaborated in September and October 2011 to put the draft application together and undertook mock interviews. On 23 September 2011 Inspector Rowe informed B that A’s application was not of the required standard; B was annoyed by this as A had apparently not followed his advice and guidance. A alleged that B physically assaulted her by grabbing her arm on this date. On 24 September 2011 B and A had a further meeting of an hour and a half to ensure that the application was completed to the required standard and on time.

On 21 October 2011 there was a road traffic accident involving A’s father. This changed A’s view of B.

On 22 October 2011 B decided to abandon his relationship with his long-term partner and proposed marriage to A. A rejected his proposal on the same day and ended her relationship with B. On 23 and 24 October 2011 B continued to contact A, attempting to persuade her to marry him. A complained to Inspector Rowe about B’s communications and late on 24 October 2011 Inspector Rowe informed B that he was not to contact A. B did not do so.

A’s complaints regarding B were subsequently investigated by WMPF and an outcome produced.

A made the following claims to the Employment Tribunal:

  1. Sexual harassment – alleging that she had been sexually harassed by B between March 2009 and 24 October 2011; and
  2. Victimisation – alleging that WMPF had subjected her to the detriment of failing to properly investigate her complaint because she had made a complaint of sexual harassment

The decision of the Employment Tribunal

The Employment Tribunal held that until 23 October 2011 the relationship between A and B had been an entirely mutual one and that there had not been any harassment (as B’s conduct towards A had not been “unwanted”): A had instigated a number of incidents, the two police officers had been closed, and had regularly exchanged messages of a sexual and emotional nature. Further, A had made no complaint at any point until the end of their relationship that B’s attentions were unwanted. The Tribunal found, however, that B’s conduct towards A on 23 and 24 October 2011 was unwanted, related to A’s gender, and had violated her dignity.

With regards to the complaint of victimisation, the Employment Tribunal held that WMPF’s handling of the complaint process could not be reasonably deemed to be a detriment to A and therefore dismissed her complaint.

A appealed the Employment Tribunal’s findings on both the grounds of sexual harassment and victimisation, arguing that:

  1. The Tribunal’s decision to reject A’s complaint of victimisation on the facts was an error of law or perverse
  2. That the Tribunal’s decision to reject A’s complaint of sexual harassment in relation to the incident that B had assaulted A at the barbeque on 30 July 2011 and that he had further assaulted her on 23 September 2011 was an error of law or perverse, in that the Tribunal had failed to making a finding on either of these complaints

The decision of the Employment Appeal Tribunal

The EAT dismissed A’s appeals, holding that the Tribunal had not made an error of law or a perverse decision with regards to the victimisation, as it had carefully considered the evidence, applied the law correctly, and had come to the reasonable conclusion that A’s case was not made out.

Further, the EAT rejected A’s appeals regarding the Tribunal’s failure to make findings on the incidents dated 30 July 2011 and 23 September 2011. With regards to the incident on 30 July 2011, the EAT held that although the Tribunal had failed to make a finding as to whether B had assaulted A, the lack of a specific finding should be taken into the context of the Tribunal’s findings on what had also occurred (or not occurred) on that day. The EAT posited, on an alternative basis, that the Tribunal’s failure to make a finding on that particular incident would probably not have affected its decision.

With regards to the incident on 23 September 2011, the EAT was concerned as to the Tribunal’s failure to make findings on this incident but inferred that the failure to make a specific finding imputed that the Tribunal had come to the conclusion that B’s grabbing of A on that date (which he did not deny) was not undertaken with a sexual motive or undercurrent.

Our comment on the case

This case is notable for two reasons:

  1. It is a demonstration that, although sexual conduct from one employee (“A”) to another (“B”) might be consented to at one point (and therefore lawful, should A subsequently end the relationship then further communication from B to A may be unlawful harassment
  2. The EAT is normally slow to overturn the rulings of Tribunal’s if the Tribunal has failed to make specific findings of fact, as the EAT will look at the Tribunal’s findings in the round before deciding whether the Tribunal’s failures on the specific points would have affected the Tribunal’s final judgment

About

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 Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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