Case law updates

Sexual harassment: An executive has successfully brought a claim of sexual harassment after her significantly older and more senior colleague was found to have acted inappropriately during an overseas business trip. Following a client dinner where alcohol was consumed, the claimant was invited to her colleague’s hotel room for a post-dinner debrief. It was there that the claimant alleged she was subjected to sexually inappropriate touching and comments. The male colleague, who was named as a respondent alongside their employer, denied any wrongdoing and accused the claimant of lying. However, the Employment Tribunal (ET) found the claimant’s account to be more credible. This case highlights the difficulties in resolving “he said/she said” allegations where there are no witnesses and demonstrates how even a single incident can result in employer liability. Although the events occurred before the introduction of enhanced obligations on employers to take reasonable steps to prevent sexual harassment, the case serves as a valuable reminder that factors such as seniority, power dynamics, alcohol consumption, and off-site work events can heighten the risk of sexual harassment findings being made. Employers should consider these risks as part of their overall risk assessment and take proactive steps to prevent such incidents. (Obiagwu v. Greystoke and Pantheon International Advisors Ltd)

Sexual harassment: An employer is only vicariously liable for sexual harassment that takes place “in the course of employment”. In another case, looking at sexual harassment that took place outside of the workplace, the Employment Appeal Tribunal (EAT) determined that an ET was wrong to find that a male colleague who sexually harassed the claimant while offering her a lift to an off-site work location following a mix-up in transport arrangements was not acting “in the course of employment”. While the lift took place outside of working hours and was not part of formal work duties, the EAT ruled that the ET should have considered whether the lift was sufficiently connected to work, or whether it constituted an extension of the working environment. As a result, the case has been remitted to the ET for further consideration of this issue. (AB v. Grafters Group Ltd)

Unfair dismissal: A claimant was unfairly dismissed despite his employer’s zero-tolerance policy on bullying and harassment in the workplace, and in circumstances where he had admitted to making inappropriate noises (including orgasmic sounds and mimicking Michael Jackson) at work. These actions led to a complaint from a colleague who believed the noises were directed at him and were racist in nature. The ET acknowledged that the employer was entitled to enforce its policy and had followed a proper disciplinary process, but concluded that dismissal for gross misconduct was not a reasonable response in the circumstances. There was no evidence of race discrimination or that the claimant’s behaviour was targeted at any individual. Additionally, the claimant was visibly upset and remorseful upon learning he was accused of racial bullying. The ET determined that it was unreasonable for the employer to expect employees to know that inappropriate, juvenile, or embarrassing behaviour that was not discriminatory would constitute gross misconduct. Although this is only an ET decision, the case is a reminder to employers with zero-tolerance policies that any sanctions imposed must be proportionate to the actual conduct in question. (Zawadzki v. The Co-operative Group)

Grievances: A store manager was awarded £60,000 in compensation for constructive unfair dismissal, whistleblowing, and sex discrimination after her employer failed to take her concerns seriously. The claimant was repeatedly subjected to foul and abusive language by a male colleague, who also expressed an intention to buy an imitation gun to threaten her (shortly after she had been caught up in a violent shoplifting incident). The ET found that the employer failed to properly investigate her complaints, ignored the threat involving the imitation gun, wrongly blamed her for problems in her working relationship with her male colleague (who had Asperger’s), and failed to provide her with adequate support after the shoplifting incident. The ET was critical of the employer’s approach, highlighting the disparity in treatment between the two employees (the male colleague’s grievance against the claimant having been progressed) and noting a lack of training and guidance for the claimant in managing her colleague’s disability. This case highlights the importance of taking all complaints seriously, conducting thorough investigations, treating employees even-handedly and providing appropriate support to employees who raise concerns. (Oziel v. Sainsbury’s Supermarkets)

Associative disability discrimination: In a referral from the Italian courts, the European Court of Justice has interpreted the EU Equal Treatment Directive as requiring employers to make reasonable adjustments for (and not to indirectly discriminate against) employees who are not disabled themselves, but who care for someone with a disability (in this case, their child) so that the person with a disability can receive primary care. As a post-Brexit decision, this is not binding in the UK, but if it is relevant to issues being determined in a UK case, the courts and tribunals may “have regard” to it. (GL v. AB SpA)

Whistleblowing: Statements made by an employer after the claimant’s employment had ended, and around the time he brought an ET claim, were found to be capable of constituting “detriments” for whistleblowing purposes, even though they were not made during his employment. However, while the EAT accepted that the claim fell within the scope of “in employment” for whistleblowing protection, the claim ultimately failed. The EAT upheld the original finding that the protected disclosures made by the claimant had not materially influenced the employer’s actions. (Day v. Lewisham and Greenwich NHS Trust)

Employment Tribunals – access to EAT documents: Although a non-party was granted permission to attend an EAT hearing remotely, she was denied access to copies of the pleadings, notice of appeal, and skeleton arguments. The non-party, who described herself as a student journalist and had a lengthy history of employment litigation with previous similar applications, argued that these documents were standard public records for the proceedings she was observing. However, the EAT disagreed, determining that the requested documents extended beyond the scope of the observed hearing. Additionally, the non-party was evasive when responding to legitimate questions from the EAT regarding her intentions and her history of seeking access to ET and EAT materials. She also failed to provide a sufficient explanation for why she could not have attended the hearing in person to view the documents. This case serves as a reminder that the principles of open justice do not automatically guarantee access to tribunal materials; specific permission must be obtained. (Cohen v. Mahmood)

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