A legal analysis of sexual harassment employment tribunal cases 1995-2005

The Authors

Graeme Lockwood, King's College London, London, UK

Abstract

Purpose – The purpose of this paper is to report on an analysis of court judgments on sexual harassment over the last ten years.

Design/methodology/approach – This research has anaylsed a sample of 399 sexual harassment cases.

Findings – The analysis provides information on factors that influence the courts’ decision-making process.

Research limitations/implications – Further investigation could be made by interviewing witnesses, claimants, respondents and tribunal members.

Practical implications – The article provides pertinent learning outcomes for claimants and employers.

Originality/value – The analysis allows us to develop a profile of successful SH claims over the period studied.

Article Type:

Research paper

Keyword(s):

Sexual harassment; Tribunals; Case law; United Kingdom; Employment legislation.

Journal:

International Journal of Law and Management

Volume:

Number:

Year:

2008

pp:

316-332

Copyright ©

Emerald Group Publishing Limited

ISSN:

1754-243X

Introduction

Sexual harassment (SH) has been a fertile area of research since 1979, when Catharine MacKinnon published her renowned text, Sexual Harassment of Working Women, which identified the phenomenon of SH and revealed its pervasiveness in the workplace. The book exposed SH as a widespread and deeply destructive aspect of workplace relations. However, numerous studies conducted in the 28 years since publication of MacKinnon's book have identified that, despite greater awareness of the problem, SH in the workplace persists as a widespread concern (European Commission, 1999; Fitzgerald et al., 1995; Wiley, 2003). In the workplace, conventional relationships of power and authority create a climate in which the scope of abuse is considerable (Conaghan, 2002). The European Union has recognized the need for further research in this domain (EU, 2004). This paper reports on an analysis of court judgments (from the Employment Appeal Tribunal (EAT) and the Employment Tribunal) on SH over the last ten years. The analysis provides useful information on factors that influence the courts’ decision-making process.

Evolution of the law

SH is a direct form of sex discrimination, according to the Court of Session in Porcelli vs Strathclyde Regional Council (1985) IRLR 134. Section 41(1) of the Sex Discrimination Act (SDA) states that actions performed by an employee in the course of employment shall be treated as having been performed by the employer as well as by the employee, whether or not they were done with the employer's knowledge or approval.

In October 2001, the burden of proof in sex discrimination cases under the SDA was changed by the sex discrimination (indirect discrimination and burden of proof) Regulations 2001. Under section 63A, it is now the case that, when a claimant proves facts from which the tribunal could infer that unlawful discrimination has occurred, it falls to the employer to disprove the allegations (Honeyball and Bowers, 2002, p. 273).

In order to strengthen the laws on harassment, the UK government introduced the Employment Equality (Sex Discrimination) Regulations 2005 with the purpose of implementing the amended Equal Treatment Directive 2002/73/EC. They render unlawful “unwanted conduct related to the claimant's sex”. This means that the comparator requirement in SH cases has been dispensed with; it is no longer necessary to establish that men and women were treated differently in a given situation or to prove any connection of the SH conduct with the victim's sex or gender. It will be interesting to witness the extent of change in SH litigation following the introduction of the new legal framework; that is, just how much, as is predicted by many commentators, litigation in this area will increase.

The employment tribunal system

A person who has been discriminated against can make a claim to an Employment Tribunal. Claims must be made within three months of the occurrence of the discriminatory act. In a claim of sex discrimination presented to an Employment Tribunal, it falls to the applicant to establish facts that constitute a “prima facie” case of discrimination. The employer must then show proof of a non-discriminatory reason for its actions (European Directive 97/80/EC October 2001). An appeal of a tribunal's ruling regarding a question of law or a mixed question of law and fact can be made to the EAT. The appeal process moves next to the Court of Appeal and from there to the House of Lords. Employment Tribunals are specialist judicial bodies. They consist of a legally qualified chair (now referred to as an employment judge) and two lay members: one from a trade union or employee background, and one from an employer background. The tribunal is intended to operate as an investigative, non-adversarial setting.

The effectiveness of the employment tribunal system

Employment Tribunals were created to provide a “user friendly” facility for the settlement of employment disputes. The concept was based on the system being accessible, speedy, informal and inexpensive (Donovan Report, 1968, pars. 568 and 578). Over the past 25 years, all of these characteristics have been increasingly questioned (Wiley, 2003). A wide range of literature has identified difficulties in enforcing employment rights through Employment Tribunals (Dickens et al., 1985; Leonard, 1987; McRudden et al., 1991; Earnshaw, 1993; Lewis and Clark, 1993; Aston, 2000; Dickens, 2002; Conaghan, 2002; Samuels, 2004; Clarke, 2006; DTI, 2004).

Dickens et al. (1985) observed that the tribunal process had become increasingly technical over time with the result that, by the mid-1980s, Employment Tribunals had become “quasi-courts”. The legalistic nature of tribunals was particularly daunting for the unrepresented applicant. Dickens et al. (1985, p. 82) found that 53 per cent of applicants who represented themselves at Industrial Tribunals (the forerunners of Employment Tribunals) felt they did not argue their case well and that this was either because they were not represented or because they had been unable to prepare or argue their case well unaided.

Leonard's (1987) study of sex discrimination litigation in Employment Tribunals concluded that making a claim of discrimination, providing sufficient evidence and following procedures such as time limits and cross-examination were difficult procedures for complainants – even those with representation. Leonard also identified particular deficiencies in the role of the chairman; it was claimed that this role varied widely in terms of how investigatory chairmen were; how encouraging or discouraging; the extent to which they modified formal rules of evidence and used their powers to regulate the tribunal procedure; and the extent to which they indicated what evidence was necessary or unnecessary, encouraged settlement and involved panel members.

McRudden et al. (1991) examined race discrimination claims and found that problems around the issue of proof were a major barrier to successful claims, with a lack of corroborating evidence for the complainant leading to a direct contest of credibility between complainant and respondent.

Lewis and Clark (1993) argued that certain deep-seated problems with the Employment Tribunal system need addressing. They suggested that, over the years, the tribunals had become too formal. Substantively, the flexibility and discretion of tribunal decision-making is constrained by complex legal provisions and by legal precedent. Procedurally, Employment Tribunals operate in key respects like ordinary courts, with oaths, adversarial proceedings and the ever-present possibility of appeals to higher courts.

Aston (2000) concluded that claimants in Employment Tribunal hearings, and the processes involved in their preparation, currently gave the respondent a natural advantage due to that party's greater resources and/or prior knowledge of Employment Tribunals and employment law. Manoeuvring in the legal system involves skills that large-scale employers may be expected to command far more readily than complainants. Good representation minimized these effects for claimants and provided a more evenly balanced contest.

Conaghan (2002) argues that decisions sometimes go against women because the courts are unable to adopt or understand a “woman-centred point of view” and because the court's lack of sympathy for the applicant is clear evidence of the privileging of the male view (Conaghan, 2003, p. 235). Furthermore, it is argued that the law has traditionally been blind to the gender dimension in SH, viewing it simply as a problem (which may or may not give rise to a legal claim) between two individuals rather than as a manifestation of power abuse in gender relations. The individualistic concept of sex discrimination law administered by Employment Tribunals is viewed as having several weaknesses. First, addressing a wrong perpetrated by one individual against another takes little practical account of the wider social context within which the wrong occurs. Second, by addressing sex discrimination rather than discrimination against women, the power dimension in SH is ignored. Most fundamentally, however, sex discrimination law proscribes “differential” treatment rather than treatment itself. This diverts legal attention away from the fact that the harassing behaviour is objectionable and offensive, whether or not it is motivated by any discriminatory intent. Moreover, it reinforces a concept of sexual inequality based on discrimination rather than subordination, and on difference rather than dominance (Conaghan, 2003, p. 430).

Samuels (2004) identifies several problems with the legal framework that act as hurdles for claimants. First, she points out that the law relies on individual women bringing claims to Employment Tribunals, with insufficient emphasis being placed on preventative action. Furthermore, the legal framework requires Employment Tribunals to interpret vague concepts, such as unwelcome behaviour and reasonableness, resulting in unpredictable and potentially inconsistent decisions (Samuels, 2004, p. 183). Second, earlier claims of SH by women were hampered by stereotypical assumptions about women. Thus, women who claimed they had been sexually harassed found that their sexual conduct, including the way they dressed, was scrutinised. Some claims of SH were defeated on the basis that the conduct in question was welcome, and women's choice of attire was taken into account in deciding whether they had been harassed (Samuels, 2004, p. 193). Third, Employment Tribunals have placed too much emphasis on the harasser's intentions. Respondents have been able to argue that the harassment was unintentional or that it was a joke or not meant to be taken seriously (Samuels, 2004, p. 202). Finally, behavioural expectations regarding the way in which a woman is expected to respond to harassment can impact claims outcomes. If the woman laughed off or ignored harassment in the first instance rather than complaining immediately, she might be regarded by the tribunal as a willing participant or as not seriously affected by the harassment (Samuels, 2004, p. 202).

Clarke (2006) argues that one of the most significant hurdles to claiming SH has been the comparator requirement. By focusing on difference, the present legal model both continues to allow the “equal opportunity” harasser to avoid liability, and fails to acknowledge that the same treatment can have a widely varying impact on different people (Clarke, 2006, p. 166).

A DTI research-funded survey (2006) of 100 Employment Tribunal judgments in race discrimination cases aimed to detect any persistent trends in written judgments in race discrimination cases that might explain why these claims are relatively unlikely to succeed at tribunal. The strength of the work lies in some interesting and revealing findings that have relevance to other jurisdictions, such as sex discrimination. The research presents findings related to the detailed content of the cases, namely (1) characteristics of the parties, (2) the nature of the complaint, (3) some core legal aspects of the litigation and (4) litigation outcome. Some of the most important findings were as follows: first, the data suggest that claimants often do not claim race discrimination alone when bringing cases against an employer. Many cases included at least one further type of complaint, the most common being that of unfair dismissal. Second, the main factor influencing success or failure at tribunal was the perceived credibility of the parties. The main basis for judgments in successful cases was the tribunal's preference for the claimant's evidence. In contrast, the main basis for judgments in unsuccessful cases was the tribunal's preference for the respondent's evidence. It is observed, however, that the way in which the tribunal constructs credibility is central and that tribunal preferences could not be perceived from the judgment (DTI, 2004, p. 6). Third, and unlike other research (Sinclair et al., 2000), no obvious relationship was apparent between type of representation and claimant success. Fourth, an interesting but not unexpected finding of the research was that claimant success was strongly linked to whether the claimant had sufficient evidence to pass the “burden of truth” over to the respondent. Section 54A Race Relations Act 1976 appears to be very significant: it is likely that fewer cases would succeed if the burden of proof did not transfer to the respondent once a detriment is established (DTI, 2004, p. 43). Fifth, the comprehensiveness of the information in tribunal judgments was of variable quality. Although most judgments provided sufficient detail of the claimant's and respondent's cases, clearly stating the tribunal's interpretation of the law and its findings of facts in support of its decisions, a number of judgments did not fully explain the reasoning behind decisions and were too brief. The research concluded that no clear patterns were apparent in the written judgments of race discrimination cases that might explain why these claims are relatively unlikely to succeed at tribunal (DTI, 2004, p. 43).

The research reviewed above demonstrates that many reasons contribute to complainants’ limited access to justice, and these factors constitute real barriers to successful employment claims. In this article the context for the case law analysis is the tribunal system with its own concerns and criticisms that impact on the decisions and cases that follow.

SH cases heard by Employment Tribunals: 1995-2005

This research has analysed a sample of 317 SH cases heard by Employment Tribunals in full merits hearings from 1995 to 2005, and 82 cases heard in the EAT during the same period. The analysis allows us to develop a profile of successful SH claims over the period studied. This paper provides a qualitative legal analysis of Employment Tribunal judgments in an effort to understand the criteria courts use to determine cases and what factors might be associated with success or failure of claims. This study contributes to the existing literature by providing an analysis of cases and highlighting limitations in court determinations that impose barriers to successful claims by female applicants. It is pertinent to remember that most SH applications are settled or withdrawn before reaching the Employment Tribunal, therefore, it might be reasonable to expect that those proceeding to a full merits hearing would do so with some degree of merit. A court's approach to an SH case is an all-important determinant of a claim's success or failure.

Main research findings on courts and the determining of cases

Quality of tribunal judgments

Employment Tribunal judgments were often rich in detail about individual cases. They were largely well structured, laid out in a logical manner, and provided a detailed and clear account of their basis in law. This assessment contrasts with the DTI (2004) survey of race discrimination cases, in which Employment Tribunal judgments were found to be of a far more variable quality and often difficult for the reader to follow (DTI, 2004, p. 28). Further research in this area might usefully explore this apparent discrepancy in the quality of tribunal judgments.

The judgments generally demonstrate a sound grasp of the law and its appropriate application to the particular facts. However, three issues of particular concern were identified in the analysis of tribunal judgments.

First, some tribunals look to the claimant to provide almost conclusive proof of the allegation. This is an incorrect legal approach for two reasons: (1) Employment Tribunals belong to the civil, not criminal, court system, and cases should thus be decided on the balance of probabilities rather than on the criminal standard of proof beyond all reasonable doubt and (2) the burden of proof in sex discrimination cases under the SDA was changed by the Sex Discrimination (Indirect Discrimination and burden of proof) Regulations 2001. Section 63A of the SDA formally reversed responsibility for the burden of proof in employment and vocational training cases. It is now the case that, where the claimant proves facts from which the tribunal could infer that unlawful discrimination has occurred, the employer must prove its innocence. The fact that some tribunals appear to be disregarding this important change in the law is of particular concern. In several cases, in which the law was applied correctly, the shifting of the burden of proof alone resulted in a successful claim. These cases show that, in the absence of an adequate argument by the respondent, the tribunal upheld complaints when the claimant established facts showing that the respondent had discriminated. This example replicates the findings of the DTI (2004) study of race discrimination Employment Tribunal judgments.

A second issue of concern in our analysis of tribunal judgments is the comparator requirement. Some tribunals seemed genuinely confused about whether claimants were required to satisfy the comparator requirement in SH cases, or whether SH is gender-specific and thus exempt from obtaining a comparator of the opposite sex. In case D9854, for example, the court stated:

It is axiomatic that sexual harassment is (almost invariably) a form of treatment which is inherently gender-based. Accordingly, for such purposes the Applicant does not need to compare herself with a person, real or hypothetical, of the opposite sex.

In contrast, in case D6517, it was stated:

In a complaint of sexual harassment the applicant must show that a male comparator was, or would have been treated more favourably than was the applicant. This entails a “like for like” comparison.

This variation in approach has led to some inconsistent decision-making by tribunals and, arguably, some incorrect decisions. It is hoped that the introduction of the Employment Equality (Sex Discrimination) Regulations 2005 will remedy this situation in the future, given that the Regulations establish a freestanding legal SH action outside the sex discrimination law, clearly removing the comparator requirement in SH cases.

Finally, the third concern stemming from our analysis is the evidence of differences in tribunals’ determination of “detriment” for the purposes of section 6(2)(b). In order to succeed in a claim under the SDA, an applicant must show that the discrimination was unlawful under section 6. Most victims of SH rely on section 6(2)(b), which provides that it is unlawful to discriminate against a woman by dismissing her or subjecting her to any other detriment (Earnshaw and Davidson, 1994, p. 4). The tribunal must be satisfied that the particular applicant was upset, offended, humiliated, or caused to feel uncomfortable in her work environment and that a reasonable person would feel the same in those circumstances. An analysis of tribunal judgments reveals variation in the “degree of detriment” required to be endured by the applicant. For example, in case D6214, the tribunal concluded that the applicant was regarded not to have suffered detriment because the words spoken were done so in a carefree atmosphere, where jokes of a sexual nature were exchanged frequently. In contrast, in case D4724, in which the applicant had engaged in sexual banter with the respondent previously, the specific conduct was regarded as offensive to the applicant. It is important for tribunals to remember that tangible consequences, such as a woman being forced to seek a transfer as a result of being subject to unwanted sexual conduct, are not essential, since it has been held that “subjecting to a detriment” constitutes being put under a disadvantage (Ministry of Defence vs Jeremiah 1979 IRLR 436). Women who are subjected to a hostile work environment where they must endure unwanted verbal sexual comments should be considered to have suffered a detriment.

Claimant contributing to sexual conduct

In the grey area of potential participation of a sexual nature by the claimant, there is evidence of inconsistent decision-making among tribunals. In some cases in which the applicant was unsuccessful, reference was made to the fact that the claimant had participated in the sexual banter generally prevalent in the work environment. In one particular noteworthy case, D5966, the claim failed despite the fact that the supervisor had placed his hand down the applicant's trousers. The tribunal regarded this as part of the general verbal and physical horseplay of the environment, in which the tribunal noted the claimant had previously participated. The tribunal failed to perceive that this action might be regarded as different in magnitude to previous events. In case D7384, the Employment Tribunal took the view that the fact the applicant had engaged in sexually explicit discussions and banter indicated that she was a willing participant. This case highlights the delicate problem of the overtly sexualised workplace.

However, in some successful cases, in which similar factual circumstances existed, a differently constituted tribunal took a contrasting approach, emphasising that the applicant's willingness to discuss sexual issues with colleagues did not remove the adverse impact that the acts of harassment had upon her.

The approach adopted by tribunals in cases of unsuccessful claims is particularly problematic and places a considerable barrier to a woman making a SH claim. This research suggests that acting like “one of the boys” in response to sexual conduct in the workplace – possibly responding with a joke – might not be the best strategy for a woman who subsequently takes a claim to an Employment Tribunal. The tribunals seem oblivious to the notion that the engagement in sexual banter might be a “coping strategy” or a way to deal with the situation in which a woman finds herself. As Monti (1999, p. 570) observed, this approach by a court ignores the possibility that women may at first play along with sexual banter in order to gain acceptance in the workplace and later find it undesirable to prolong this sort of behaviour. Employment Tribunals need to be encouraged to adopt a more female-orientated view in order to address the suffering endured by women in the workplace (Monti, 1999; Conaghan, 2003; Samuels, 2003).

In other unsuccessful cases, some tribunals displayed attitudes that were reminiscent of criminal courts’ hearings of rape cases in earlier decades. References to the woman being dressed provocatively or engaging in sexually overt conduct counted against the claimant. The perception by the tribunal that the claimant engaged in sexual conduct was reason enough to excuse the conduct of the perpetrator. Early EAT cases on SH, such as Snowball vs Gardner Merchant Limited [1987] IRLR 719 and Wileman vs Minilec Engineering Ltd. [1988] IRLR 144, took a controversial approach, with the courts displaying little empathy towards the victims of harassment, often expecting them to justify their conduct and choice of attire (Samuels, 2003, p. 427). In Snowball, evidence of a woman's attitude towards sexual matters was held to be admissible in order to show that there had been no detriment under section 6(2)(b) SDA nor any injury to feelings. In Wileman, the applicant had been sexually harassed by a director over several years, until her dismissal. The tribunal ruled that the applicant suffered minimal detriment, as she was able to put up with the conduct on previous occasions and it had constituted only a minor irritation. In making a token award of £50 compensation, the ruling took into account that the claimant sometimes wore scanty and provocative clothes to work. Ms Wileman appealed against the award level. The EAT held that the Employment Tribunal had not erred, the tribunal was entitled to take into account the woman's style of dressing as an element in deciding whether the harassment to which she was subjected constituted a detriment. Furthermore, the EAT stated, “If a girl on the shop floor goes around wearing provocative clothes and flaunting herself, it is not unlikely that other workpeople – particularly the men – will make remarks about it”.

Passive response to SH

The failure of a victim of SH to complain to the employer about the conduct and/or inform the harasser that the conduct is unwelcome damages the claimant's likelihood of success. Lack of action by the claimant is sometimes viewed by an Employment Tribunal as either casting doubt on the truth of the allegation or as evidence that the victim did not regard the harassment as very serious. In Jones vs ICS Services Ltd & Trigg, the EAT concluded that, horrendous though the behaviour was, it did not amount to SH because no one had understood the applicant to be rejecting the conduct that was now the subject of a complaint. The tribunal concluded that the applicant had not discharged the burden of proof, and in those circumstances, her claim of discrimination on the grounds of SH by the respondent fails, “and in turn the claim against the employing company failed”. In this particular case, the EAT held that it was necessary for the applicant to spell out exactly what was unwelcome. The EAT suggested that the more insensitive an individual, the greater the duty of the victims to communicate their discomfort. In case D5537, the Employment Tribunal suggested that an applicant's chances of success will be negatively affected if she cannot produce sufficient evidence to substantiate a claim of SH, that is, if no formal complaint had been made to the employer and the allegations were made only in the originating application to the Employment Tribunal. In D8345, the tribunal criticised the applicant for not making it sufficiently clear to her alleged harasser (her manager) that the pattern of behaviour was unwelcome. She had not objected seriously or through proper channels but had instead continued to respond to the unwelcome conduct in a light-hearted manner. Such rulings by the tribunal can be considered to ignore the power realities in organisations that might make it difficult for a woman to make a complaint about a senior male manager internally, prior to filing a tribunal case.

In case D6156, while it was acknowledged that the behaviour endured by the applicant was extremely unpleasant, it had to be viewed against the norm in the workplace in question. In the context of this workplace, the behaviour was not the sort that was unacceptable. The applicant had previously tolerated much of the conduct now being complained about. The tendency of tribunals to focus on the issue of whether the woman made a complaint endures, despite criticism of Employment Tribunals by the EAT for placing undue emphasis on the applicant's failure to complain, in view of the fact that a woman might be inhibited by the power relation in the workplace.

Considering silence and lack of complaint as acceptance of unwelcome conduct is folly. Failure by a woman to complain may indicate unreasonableness or unwelcome conduct on the part of the employer. Such circumstances are of particular concern, given the findings in the research literature suggesting that women do not generally complain and instead tend to adopt a passive response (Samuels, 2003; Bowes-Sperry and Tata, 1999). An individual may not complain for a variety of reasons, such as the hope of dealing with the situation herself, fear of being labelled a troublemaker, belief that no action would be taken, concern that her complaint might have a negative impact on her career, or simply the feeling that she would not be believed (Rutherford et al., 2006).

Quinn (2000) argues that a woman's failure to complain about harassment is a “survival tactic”. Complaining may be disempowering because the woman might appear unable to take a joke. By taking the joke seriously, she might be seen as socially clumsy and overly sensitive. By refusing to react, women may see themselves as denying the harasser the satisfaction of riling them and maintaining a sense of power and control. Our analysis of Employment Tribunal decisions suggests that a passive reaction is strongly associated with case failure. Courts seem to be underestimating the impact of certain behaviour on females in the workplace. Monti (2000, p. 369) makes it clear that the onus is placed on the victim to indicate what conduct is unwelcome, to act in a way that is not inconsistent with her objections, and to show that she has indicated clearly that the conduct is unacceptable (Samuels, 2003, p. 474).

However, a more enlightened approach is arguably adopted by the EAT in Reed and Bull Information Systems vs Stedman (1999) IRLR 299. In determining whether the conduct is harassment, it was suggested that it should be viewed from the perspective of the victim. The EAT held that it was up to the individual concerned to decide what behaviour he or she found offensive, and that whether another person might or might not proceed in the same manner did not undermine the claim. It was not necessary for a woman to make a public fuss to indicate her disapproval. Provided that any reasonable person would understand, whether by her words or conduct, that she had rejected the behaviour in question, then continuation of this behaviour would constitute harassment.

Lack of evidence of SH

A claim might also fail because the applicant cannot establish to the tribunal's satisfaction sufficient evidence of SH. This is particularly, the case if it is the applicant's word against the respondent's and the tribunal is reluctant to draw an inference of discrimination from the available evidence. Due to the perceived gravity of a claim of SH, a tribunal might apply a high burden of proof. In Widders vs TW White and Sons Ltd, an 18-year-old administration assistant employed from 7 April to 9 September 2003 claimed that her line manager subjected her to a course of bullying, humiliation and SH during employment, including pinching her, sticking his tongue out at her, blowing her imaginary kisses, and increasing her workload when advances were rejected. The tribunal felt unable to judge whether these claims were true. During investigation by the employer, the line manager conceded that he placed his hand on the applicant's shoulder or placed his arm around her, but he suggested that he often did so with other staff, both male and female. The tribunal accepted this explanation and found that the line manager had an unfortunate management style but behaved in the same manner with males and females. It also found no evidence that his attitude was motivated by the applicant's sex. The tribunal concluded that the line manager did not bully the applicant but rather that he was forceful in manner. In these types of situations, the dividing line between the success and failure of an SH claim might be very marginal.

Several claims were also rejected on the grounds that a single incident was not serious enough to constitute SH. In some circumstances, tribunals concluded that the conduct could not be construed as SH, since the comments in question at most constituted poor taste, though not to the degree of being considered offensive to ordinary persons in the course of their employment. Does this suggest that women will have to endure a category of mild harassment, flirtation, horseplay, or a degree of minor vulgarity?

In case D7676, in which the applicant had complained about a manager putting his arm around her when talking to her, the tribunal concluded that although this was familiar behaviour, no lewd intent was determined and the behaviour of the manager was not such to intimidate the applicant or undermine her dignity at work. The tribunal observed that the manager's behaviour was no more than the familiar behaviour that a man would show to his daughter; thus, the action did not constitute SH.

Such conservative rulings may create an obstacle to women making claims in male-dominated environments. By necessity, tribunals are often required to make fine-line judgments; however, they must always be sensitive and careful. The absence of malice and the intention of humour in banter do not in themselves constitute a defence against words or actions being interpreted as sexual harassment. While malice might be an aggravating feature, it is not a prerequisite for sexual harassment. Shakespeare had it right when he caused the character Rosaline to say, at the end of Love's Labours Lost: “A jest's prosperity lies in the ear of him who hears it, not in the tongue of him who speaks it”. The feminist literature might argue that men must learn to modify their behaviour so as to enable women to carry out their work with “professional dignity and without the barrier of sexual differentiation and abuse” (Monti, 1999, p. 264).

Witness credibility

In many SH cases, tribunals are faced with an allegation of unwanted sexual conduct by the claimant and a straight denial of the behaviour by the alleged harasser, constituting two conflicting versions of the events, which are rarely witnessed by others in the workplace. This has led SH cases to be labelled as “credibility contests” (Earnshaw and Davidson, 1994a, b; Conaghan, 2002; Samuels, 2004). It also invites the question of how credibility is constructed by tribunals. In establishing credibility, Employment Tribunals will take into account not only the demeanour of each witness, but also the consistency of the evidence given by both sides as well as factors corroborating the evidence from oral evidence or documentary material.

The main basis for credibility judgments in successful cases was that the tribunal preferred the claimant's evidence, or the claimant established a prima facie case and the respondent failed to give an adequate defence to the SH claim. Claimants’ credibility was enhanced when they provided consistent evidence throughout the proceedings and had made an internal complaint through proper channels. For example, in case D10413, the applicant's success in her SH claim was founded on the fact that at no time had she responded to the sexual overtures of the respondent in a positive manner, that she had complained to her employer about specific incidents, and that she had kept a detailed diary citing when the incidents occurred, the nature of the conduct, and descriptions of how each event had made her feel. In contrast, a claimant's credibility was damaged if she was unable to recollect and recount in detail the alleged offensive remarks or unwanted sexual behaviour. An analysis of cases reveals that credibility was not crudely constructed based on social category; that is, professional women are no more likely to succeed in their claims than women working in non-professional categories.

In many unsuccessful cases, in which tribunals tended to prefer the respondent's evidence, they referred to applicants as being evasive, hesitant, and confused in answering questions and generally unsure of themselves. For example, statements made in the originating application relating to the core of the applicant's claim might be different in material aspects from complaints made in the workplace. In case D6350, the applicant's evidence was found to be rehearsed and in many instances inconsistent with the documentary evidence laid before the tribunal. The varying versions of events on different occasions swayed tribunals to take the view that the applicant's evidence was unreliable. In case D6214, the tribunal drew specific attention in its deliberations to the fact that the applicant's complaints were vague, and that despite claiming that she found specific conduct of male employees disgusting and annoying, allegations were made only at the tribunal stage. These factors were regarded as going to the root of credibility, the court having decided that they rendered the applicant's case unbelievable.

Credibility may be derived from hard factors, such as consistent evidence, or from more intangible issues, such as self-presentation or demeanour. Credibility was reduced for either party by inconsistency in evidence, evasiveness or defensiveness, and, for claimants, perceived exaggeration of events, illusions of a conspiracy, and distortion of the truth. For example, in case D8651, the claimant was criticised by the tribunal as being evasive and confused in answering questions and generally unsure of herself.

Of greater concern was evidence of “personality characteristics” being taken into account by Employment Tribunals. In case D4960, the claimant was criticised by the tribunal for being too sensitive and lacking in confidence, which seemed in the tribunal's view to undermine the merits of her case. In contrast, in case D5476, the claimant was described as bright and enthusiastic, which added to her credibility in the eyes of the tribunal. In case D5022, the tribunal described the claimant as lacking interpersonal skills and evasive, while in D4724, the claimant was described as a committed, enthusiastic, and ambitious employee. In case D9854, the credibility of the applicant's claim was undermined in the view of the tribunal because it was satisfied that she was a robust, worldly-wise person who would not have regarded the comments as offensive or upsetting.

The problem of such factors as personality being taken into account in SH cases is that it is difficult to see their bearing on whether the claimant was a victim of SH. Furthermore, in some cases, the tribunals rebuked the behaviour of the claimant but were sympathetic to the alleged perpetrator. For example, in case D8269, the female claimant was criticised for not complaining, acting passively, and being oversensitive; in contrast, the alleged male perpetrator was regarded as socially clumsy in respect to his conduct towards female staff, and therefore, the tribunal did not regard it as SH. The undermining of the claimant in this way and the excusing of the male perpetrator on the grounds of a lack of social awareness is particularly concerning and seems to demonstrate a lack of insight of the particular tribunal. It also denies women a degree of protection in the workplace. These findings have a disturbing resonance with, and indeed replicate those of Monti (1999, p. 570), who analysed US cases of SH and found that the victim's character was taken into account by the court and that, as in many rape cases, judges put the women on trial for being unsociable and exposing themselves to harm for not trying to understand men. Such an approach by the courts supports and confirms the view of feminist writers, such as Conaghan (1996) and Samuels (2003), that courts do not adopt a sufficiently female-orientated view of events, and that the events under scrutiny are in danger of being judged by the standards of a male-oriented view, which may be more accepting of the conduct in question (Samuels, 2003, p. 473; Monti, 1999, p. 571).

In case D9028, in which the claimant was successful, the employer had used the most common defence to an SH action, “denial” (adopted in 79 per cent of cases). Nonetheless, the employer's credibility was damaged because the verbal and written evidence produced to discredit the claimant was contrived and conveyed the impression to the tribunal of being deliberately fabricated to support the alleged harasser and attack the claimant. Such obvious weaknesses in the evidence enhanced the credibility of the claimant and damaged that of the employer.

Similar findings on the importance of credibility in tribunal decision-making were found in the DTI (2004) survey of race discrimination cases, leading the authors to conclude:

Given that the Tribunal's judgment on credibility of the witness was highly significant, this is an area that could be the subject of further research using observation and semi-structured interviews. Inconsistencies in evidence affected credibility, but it is also probable that less tangible qualities and the demeanour of witnesses, which cannot be deduced from documents, influenced the Tribunal's judgment in this respect. Further investigation of this important area would involve both observation and interviewing witnesses, claimants, respondents, and tribunal members. Because documentary evidence appears to be a significant aspect in the Tribunal's judging credibility, an investigation of credibility should also involve examining how claimants can acquire documentary evidence. … Furthermore, a comparative study of sex discrimination cases would be valuable (DTI, 2004, p. 44).

Employer actions in response to SH allegations

It is evident that respondents are vulnerable if they did not have an equal opportunities policy in place or suitable procedures for dealing with complaints, particularly, if they put forward a defence to these matters under section 41(3) of the 1975 SDA. Where such a defence is raised, the tribunal must be convinced that the respondent had taken such steps as were reasonably practicable to prevent its employees from engaging in acts of these descriptions during the course of their employment. In D7676, the tribunal was impressed by the company's policy on bullying and harassment and by how quickly the applicant's case was responded to with a full and formal investigation of the allegations. In case D9028, the tribunal criticised the employer because there was no evidence to suggest that the respondents had an active discrimination or harassment policy, despite consistently referring to one. The employer demonstrated a surprising lack of care in dealing with a succession of complaints from the applicant, prompting the tribunal to declare:

In another case, D8481, the tribunal criticised the human resources (HR) manager for conducting a perfunctory investigation that discouraged the applicant from making a formal complaint, which could have provided the basis for a proper inquiry. The company procedures for dealing with such grievances were regarded as inadequate, out of date, and in need of serious reform.

In case D4921, some good learning points for employers can be derived from an analysis of the tribunal judgment. It is evident that, in rulings against employers, the blame often falls to ineffective equal opportunities procedures. The tribunal observed:

Matters of equal opportunity are vitally important and should be brought to the notice of the whole workforce. It is the responsibility of personnel to carry out and audit routinely (we would have thought every six months or so), to make sure that the policy is both known and being applied. Perhaps if organisations took this approach trouble would be avoided and such legal proceedings saved.

Tribunals also often commented on the use of notices in the workplace warning employees not to discriminate on the grounds of sex. While it was accepted that such postings constitute an effective warning in cases of conscious discrimination, the Employment Tribunals do not accept that notices help to eliminate unconscious discrimination. Employers should provide courses that deal with sex discrimination situations. The lack of guidance about how to deal with these issues or how to recognise them in practice is a seriously limiting factor that hampers managers’ efforts to deal with SH.

Small employers also were subject to particular criticism for poor procedures. While it was acknowledged that small businesses are not likely to have sophisticated procedures, all too often they were deemed to lack any procedures whatsoever that would indicate to employees how complaints might be made or to give employees confidence that they would be taken seriously. Taken with the fact that small employers are disproportionately represented among SH cases, this problem might be of particular note.

Best practice would dictate that proper grievance procedures need to be followed and an adequate response made to complaints. This may be a particularly important learning outcome for employers, as our research shows that less than half of claimants (49 per cent) had used the power structure of the organization to try to stop the alleged harassment prior to making a claim before an Employment Tribunal. Insufficient attention to complaints may mean that problems remain buried until too late. Furthermore, alleged harassers are almost always males holding management positions (84 per cent are in senior positions to the claimant). In contrast, the majority of claimants tend to be non-managerial and especially non-professional women with low tenure (33 per cent have less than one year on the job). The power gap between claimants and alleged harassers may therefore also provide an inherent obstacle to complaining, raising the possibility that insufficient attention is being given to the vulnerability of short-tenured, non-managerial employees in this respect.

It is evident that claimants’ concerns are not being dealt with through workplace grievance procedures, resulting in an internal breakdown of communications and subsequent legal action. One graphic illustration of this is case D4950. The claimant reported that she had been subject to sexist attitudes from two colleagues but that management denied that the situation was occurring, telling the claimant that she was being too sensitive. This lack of acknowledgment and internal resolution allowed the verbal taunts to continue having a detrimental impact on the claimant's health and work life. The fact that management failed to tackle the problem resulted in the perpetrators escalating the conduct, which led the claimant to believe that she had no other option but to take the case to an Employment Tribunal. In the judgment, the tribunal drew attention to the lamentable response by management to the claimant's original grievance. This example illustrates the need for proactive efforts in order to avoid SH occurrences and to address the cultural and other major barriers employees encounter when making use of grievance procedures.

In case D9862, the employer failed to successfully defend the case due to the lack of a proper equal opportunities policy. The company provided a statement of intent with regard to equal opportunities, which included specific reference to SH, but no arrangements were made for any training or monitoring of equal opportunities procedures. There was no evidence of any substantive action being taken when SH complaints were made. The workforce had not received any guidance in conducting itself appropriately and according to the manner expected of any equal opportunities employer. Unacceptable behaviour was not monitored or challenged. The tribunal concluded that the employer had not taken any reasonably practicable steps to prevent its employees from acting in an unacceptable manner towards the applicant.

Conclusion

It is evident from the nature of SH claims taken to tribunals that the conduct is often about gaining or retaining power over subordinates by those in positions of authority. In fact, according to the gender-dominance perspective, SH is a means by which men in privileged positions have reinforced their privilege and maintained dominance over women at work and in society more generally (Padavic and Orcutt, 1997, p. 683; Kohlman, 2004; Collinson and Collinson, 1989). However, if harassment is the result of power differences embedded in organisational norms, then training should be directed toward changing those norms and recognising the responsibility of the organisation and management in eliminating undesirable and unacceptable behaviour (Lynn Bowes-Sperry and Tata, 1999, p. 280). Tackling the power dimension is important because, as Kohlman (2004) observes in the US context:

This type of societal arrangement with men as the most powerful actors in the labour market, and women with less power than men therefore means they are more likely to be the targets of SH because of this lack of power.

The article also reveals some pertinent learning outcomes for claimants and employers. In regard to female claimants, some important and uncomfortable messages have emerged from tribunals that might have a negative impact on the success of their cases. First, it is evident that many tribunals will look for evidence that the female victim of sexual harassment challenged the alleged harasser about the conduct and made it clear that such behaviour was not acceptable. They also expect the victim to make a formal complaint to the employer. It would appear that women's most common response, a passive reaction, results in negative inferences towards the applicant's claim.

Second, it is evident from a significant number of tribunal judgments that the character and behaviour of the applicant will be considered in coming to a conclusion on the merits of the case. The signal from the tribunal is that women who wear provocative clothing without considering the effect it may have on work colleagues will find that this practice will hinder any legal action against an alleged harasser. This approach by the tribunal incorporates a distorted gender dimension into the standard applied by the tribunal. It might be argued that such failings by tribunals confirm the feminist perspective that harms suffered by women have not traditionally been properly recognised by the law (Conaghan, 1996; MacKinnon, 1979).

Turning next to employers, it is evident from tribunal judgments that the organisational response to an internal SH complaint is important. The employer must respond adequately to a complaint, carry through an investigation, and take remedial steps (Lynn Bowes and Sperry, 1999). Tribunal judgments make it clear that they expect employers to set the standard of the behaviour climate in the workplace and to make it clear that individual employees must not be treated abusively or with disrespect. Hunt et al. (2007) observes that, if management allows a climate of disrespect to exist within an organisation, this makes it more likely for certain inappropriate behaviour to be taken for granted and leads to the creation of a “incivility spiral”. This is where discourteous behaviour becomes routine and regarded as normal by employees and employers (Hunt et al., 2007, p. 6).

HR departments must adopt a more constructive and effective system for responding to SH complaints. Often, when a complaint is made, the organisation reacts in a hostile fashion to the complainant, and HR staff find it difficult to mediate between the employer and employee, resulting in accusations of unresponsiveness (Julyan, 2005). Sigal et al. (2003) suggest that organisations should strive to create a climate that is hostile to any form of sexual harassment but sympathetic and supportive to those who face it. More than half of the claimants had at one point reacted passively to the harassment of which they later complained in litigation. They did not use the organisation's power structure to mount a formal complaint or appeal to a higher authority. Thus, the cases suggest a widespread scenario of a leap from non-confrontational reactions to the alleged harassment to the most confrontational reaction possible – filing litigation.

This phenomenon, along with the above findings, suggests that power realities ensure that many workers see little opportunity in their organisation to challenge inappropriate and unwelcome behaviour. This should give pause: SH problems may remain buried until it is too late to resolve them internally. In many cases, organisations are likely to have a formal policy in place and to have formal structures and avenues in place for complaint. The important question, however, is whether these operate effectively. What, in other words, are the structural and cultural barriers to workers making use of these avenues? This difference between formal policy and everyday practice is the biggest challenge for HR managers seeking to curtail SH and thus avoid the spectre of litigation. Sensitivity to the power realties in organisations (and the complex ways in which power may be rebalanced by the tribunal system) is the only way to bridge the gap.

References

Aston, J. (2000), "“The experience of claimants in race discrimination employment tribunal cases”, Report 336, Institute of Employment Studies", London, .