Employment Tribunal finds employee was harassed based on protected ground of sexual orientation but was not victimised.
In the Employment Tribunal case of Mr A Smith v Saxton 4 x 4 Ltd: 3200695/2018, the Claimant brought complaints of harassment related to sexual orientation and/or victimisation. The Respondent defended the complaints on grounds that the claim was presented out of time and also on its merits. The Claimant alleged that he was subjected to homophobic abuse and unwelcome comments about his sexual orientation by a number of employees over a period from 30 May to 6 June 2015, that he raised a grievance about this conduct which was investigated in a manner which was not fair and which then resulted in him facing disciplinary action as the alleged instigator of inappropriate sexual comment and conduct in the workplace which led him to resign. The Respondent’s case was that the Claimant raised a complaint about inoffensive language related to sexuality, that it was investigated extensively but was not upheld; its case was that in the course of investigation it became aware of the alleged misconduct of the Claimant, it instigated a disciplinary hearing which the Claimant did not attend following which he was summarily dismissed on 3 September 2015.
The facts in Mr A Smith v Saxton 4 x 4 Ltd
The Respondent was a family owned business selling high end second-hand vehicles to the general public and employing between 80 and 100 staff in its showrooms in Chelmsford. The Claimant was employed for 15 months as trainee Business Manager. His employment ended, either on 17th August as the Claimant resigned, or on 4th September 2015 for alleged gross misconduct.
The Claimant’s account was that he was a very private person and while he never denied his sexual orientation, he did not always volunteer it. The Tribunal found that some of the staff within the Respondent’s work environment used swear words and sexual innuendo in the form of “banter”.
The main incident occurred on 30 May. On the Claimant’s account, Mr. Cliff Traylor shouted across the office to him asking to get a customer quote immediately. The Claimant objected to being shouted at in this way and went into the sales office closing the glass doors behind him. The exchange became heated, the Claimant told Mr. Traylor he was being rude and called Mr. Traylor “a twat” to which Mr. Traylor responded by calling the Claimant “a dick”.
What happened next was disputed. The Claimant’s account was that as he started making his way out of the office area, he heard Mr. Traylor call him a faggot, cock sucking prick and gay twat. He believed that everybody in the office area heard this abuse as the doors were still closing.
The stress of this event and other subsequent events, caused the Claimant to take a day off in June and he was requested by the Respondent to attend a meeting to explain why he had done this. Following this, the Respondent started an investigation into the events alleged by the Claimant, but the Claimant considered that the process felt like a disciplinary. He raised a grievance. In the investigation, the Respondent found evidence that Mr Traylor had spoken to the Claimant in the way he claimed and gave him a written warning; however the Respondent also found that the Claimant had used sexual innuendoes in the workplace on previous occasions; his grievance was not upheld; he appealed but failed. He was then invited to a disciplinary to discuss the behaviour that had been uncovered. The Claimant resigned but as he did not attend this or a further meeting, the Respondent dismissed him.
The decision of the Employment Tribunal (ET)
The Tribunal found that the Claimant had proved facts from which they could infer discrimination and so the burden of proof shifted to the Respondent.
The Tribunal determined that on 30 May Mr. Traylor did not use the words of which he was accused, but that on 5 June Mr. Traylor did call the Claimant ”a fucking liar” (although this was not related to sexual orientation).
However, the Tribunal found that other comments made by other employees such as teasing the Claimant for being feminine in his mannerisms and calling him gay were made and that these were intended to mock the Claimant based on his sexual orientation. In relation to three incidents, the Tribunal did find that other employees’ conduct was related to the Claimant’s sexual orientation and it did have the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The Tribunal found that, particularly as the Respondent had not carried out any training of its staff on equality issues, that the Respondent was liable for these acts.
The Tribunal did not uphold the Claimant’s victimisation argument: the Tribunal found that the Respondent’s failure to uphold the grievance was justified because of the evidence that they gathered and was not a response to the grievance having been raised and that the decision to commence disciplinary action was appropriate given the evidence that was uncovered. They also found that the Claimant’s appeal was dealt with adequately and that there was no delay or failure to consider the complaint fairly and neutrally. The Claimant’s appeal against the grievance outcome was not upheld because the Claimant did not produce any new evidence.
Our solicitors’ views on the case of Mr A Smith v Saxton 4 x 4 Ltd
Caroline Lewis, a Senior Associate in the employment department at Redmans, made the following comment on the case: “Harassment because of sexual orientation can take many different forms. It could be a verbal or written comment, what somebody thinks is a ‘joke’, exclusion from conversations or activities, violence or the threat of violence.
An employee’s complaint of this nature should be taken seriously, and the employer should take care to listen to their concerns. It should also be mindful that this type of complaint can be difficult for the individual to discuss.
It is important for an employer to deal with this type of complaint, not only because of its legal obligations, but also because there could be knock-on effects. The employee being harassed might feel de-motivated and their productivity fall, or it might lead to them being absent from work through stress. A climate of harassment can also damage morale in the workplace.
An employer may benefit from having a specific policy setting out how it would deal with complaints about sexual orientation discrimination and ensuring that staff are fully trained on this.”
The decision of the Employment Tribunal in Mr A Smith v Saxton 4 x 4 Ltd: 3200695/2018 can be found here.