In a recent case concerning a sexual harassment claim, the Employment Appeal Tribunal (EAT) ruled that the conduct must be “unwanted” and that the affected party’s response and timing of complaint are relevant factors. This was confirmed in Nunn v G & MJ Crouch and Sons Ltd (t/a Crouch Recovery).
In this case, Ms N started working for the employer in May 2018 and was known to them as a family friend. Following a dispute, she resigned in May 2021 and brought claims for constructive dismissal, sex discrimination, sexual harassment and whistleblowing. The Employment Tribunal upheld her claim for sex discrimination, where she was asked by Adam Crouch in a text message to attend a client meeting because the client “liked pretty women” — a comment that would not have been made to a man. The remaining claims were struck out, and she appealed to the EAT.
The appeal was based on several specific incidents that Ms N alleged she had been subjected to by Mr Crouch and other members of staff. These involved comments which the EAT acknowledged were graphic, sexually explicit, vulgar, offensive and inappropriate for the workplace. Despite this, the EAT rejected the claims, finding that the tribunal was entitled to reach that conclusion. It held that the conduct was not “unwanted” and did not intimidate Ms N or create a hostile, degrading or offensive working environment for her.
In reaching its decision, the EAT took account of the family friendship, the history of previous banter, the fact that Ms N had freely taken part in exchanges of such messages, had laughed at and enjoyed some of the comments, and that she waited 16 months before raising a complaint. While the EAT confirmed that delay does not automatically prevent a claim, it is a relevant factor. They noted that although Ms N had raised other issues immediately (such as the “pretty women” remark), she failed to mention the other conduct, and the delay supported the conclusion that the conduct was not “unwanted”.
In these circumstances, the employer was able to successfully defend the sexual harassment claim because the conduct was not unwanted and did not create an unacceptable working environment. However, without clear evidence that an employee freely participated in and enjoyed such banter of a sexual nature, employers should not lose sight of their statutory duty to take steps to prevent sexual harassment in the workplace and to act proactively. This includes conducting risk assessments, implementing control and reporting measures, adopting open and positive policies to encourage discussion and reporting (including conduct by third parties), regularly reviewing policies, and providing training to staff.
As successful discrimination claims can attract unlimited compensation, it is crucial that employers seek professional advice to ensure they have appropriate policies and documentation in place and deal with incidents promptly and robustly. Failure to do so can lead to time-consuming grievances and, more significantly, litigation with associated legal costs and adverse publicity. Employers are encouraged to contact the HR Helpline for advice and assistance to ensure matters are managed effectively and in a timely manner.
