Speaker #0Today, on the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of Nunn and G and MJ Crouch and Son, Limited, trading as Crouch Recovery, in which the Employment Appeal Tribunal was asked to determine a sexual harassment claim involving the use of inappropriate and vulgar language in the workplace, which was referred to in the course of the claim as "office banter". In this case, N, an accounts manager, was employed by a family-run business and was a long-standing friend of the family, including A, who managed the business. Around three years into her employment, the parties fell out and then resigned, claiming constructive dismissal, as well as making a number of sexual harassment claims which were based on four specific incidents, including inappropriate and sexually explicit language within a WhatsApp message shared with her by A, as well as sexual and other inappropriate comments by colleagues within the open plan office and within a message directed towards her by a senior member of the family business. The tribunal dismissed all N's sexual harassment claims on the basis that the alleged conduct was not unwanted by N, taking into account the nature of the close working relationship between N and A, which N had described as blurred, and the fact that N had over the years engaged willingly in discussions of a private and personal nature with him. On appeal, the Employment Appeal Tribunal upheld the tribunal's decision, finding that it had been entitled to reach the conclusion that, although such vulgar, offensive and grossly inappropriate language was clearly inappropriate, the comments, while they may have surprised or even shocked N, were not unwanted and therefore did not meet the definition of harassment since they did not have the purpose or effect of violating N's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for N in these circumstances. These included N's close personal relationship with A. The fact that the WhatsApp message was an account of exchanges with A and another female employee, and that N had responded with her own advice that he had behaved wrongly, and the fact that she did not say he had overstepped the mark, or complained until 16 months after the event once she had begun tribunal proceedings. The tribunal had also been entitled to take into account direct evidence of N laughing at, and enjoying, certain sexual comments or banter in the office, and rejected the argument that the tribunal, in relying on N's failure to complain at the time as undermining her case that the conduct happened at all or was unwanted, failed to properly consider the extent to which N had merely tolerated such conduct as a way of fitting in at the workplace, N's appeal was dismissed. Look out for further episodes in this series to stay up to date on all things HR and employment law related.
