Recently some Conservatives claimed Labour Deputy Leader Angela Rayner tries to distract the PM Boris Johnson by crossing and uncrossing her legs opposite him in Parliament, likened to a scene from 1992 film Basic Instinct. MPs were quick to call the comments misogynistic, appalling and disgusting. Have attitudes in the workplace evolved or are they stuck in a premillennial 1990’s time warp? The decision of the Watford Employment Tribunal (ET) in Fricker v Gartner UK Ltd suggests that in some workplaces, it is the latter.
Accounts executive, Ms Frances Fricker (FF), resigned in October 2019, and claimed constructive dismissal and sex discrimination, after a request to move to a different team was rejected. FF claimed that from November 2017 her line manager Mr Giuseppe Ajroldi (GA) repeatedly encouraged her to add a more attractive photograph to her Linked-In account, made unwanted sexual advances including attempts to kiss and touch her and repeatedly called her a 'good girl'.
FF says when she told GA she found this condescending and rejected his advances, GA took revenge, souring relationships with other colleagues, excessively criticising her publicly and initiating a performance improvement plan. FF claimed colleagues referred to her as an ‘oxygen thief’, GA having mocked Facebook photos of her suggesting she was overweight.
The ET found there was sex discrimination and that FF had been constructively unfairly dismissed, calling the respondent’s approach to FF’s grievance ‘primitive’, including implying she had brought matters on herself. The ET described the workplace culture as ‘laddish and probably toxic’, making a finding of sexual harassment under section 26 of the Equality Act 2010 (EqA), ruling FF had been treated less favourably because of her rejection of GA’s attentions. The ET called the respondent’s defence under section 109(4) of EqA (that it took all reasonable steps to prevent the discrimination) ‘wholly without merit’.
Comment
Katherine Irvine, Associate in our Employment team comments:
“Employers who suspect someone may be uncomfortable with comments or behaviours would be advised to take pro-active steps and to approach the individual to ascertain if they are being offended. If concern is raised, treat that seriously and manage formally if requested to, conducting a full investigation. Minimising the complaint may lead the individual to feel an employer believes their views do not matter and makes it more likely an ET claim will be raised.
“Laddish behaviour described as “banter” is not likely to be accepted as innocuous by the ET. Employers should be alert and ensure such emerging or existing cultures are kept in check and that no individuals are likely to be adversely affected by it.
“This ET ruling reminded us that language evolves and something once considered harmless now has a different impact. Employees can be encouraged to monitor the way they use language and be mindful of discomfort or distress it can cause to others.
“Employers can deploy the statutory defence that it took all reasonable steps to prevent discriminatory conduct in the event of a tribunal claim. To succeed though, it is important that before any complaints arise, employers examine existing policies relating to discrimination, harassment and equal opportunities; ensure those are robust and are communicated clearly to the workforce; and ensure adequate equalities training is provided and regularly updated.
“Larger employers can consider setting up a dedicated helpline or intranet link for complaints which should be well publicised among the workforce. If concerns are raised, monitor how effective the existing policies have been and revise where necessary.
“Also helpful is to explore what could be done over and above policies and training, by review of statements from those interviewed in investigations or in exit interviews/questionnaires, to avoid any future discrimination occurring.
“Retaining good, contemporaneous records to evidence all steps taken to prevent workplace discrimination is essential e.g. records of attendees at and the content of training, how policies are notified to staff and records of update emails or communications as reminders to staff periodically, that workplace discrimination will not be tolerated and disciplinary sanctions will be implemented if found to have arisen.”
So, whilst the debate around Ms Rayner’s legs in Parliament will undoubtedly fade, the Basic Instinct image lives on as do some remaining unsavoury workplace cultures.
