Tribunal dismisses harassment case to avoid encouraging 'culture of hyper-sensitivity'

But experts warn businesses should still take steps to ensure managers communicate in a ‘professional and appropriate manner’

An employment tribunal (ET) has dismissed several complaints of harassment brought by a legal counsel against her former employers, in part because the judge did not want to “encourage a culture of hyper-sensitivity”.

Miss N Sithirapathy brought claims of sexual harassment, harassment related to sexual orientation and age-related harassment against PSI CRO UK and its employees Mr Schmidt and Ms Ruf after she was asked why, as an unmarried woman without children, she had turned down a job that was based abroad, and after she alleged she was not promoted because of her age. 

However, the ET dismissed the complaints, finding that although the comments made were “unfortunate and awkward... we bear in mind the importance of not encouraging a culture of hyper-sensitivity or of imposing legal liability to every unfortunate phrase”.

Additional complaints of sex, sexual orientation and age discrimination, as well as breach of contract, were all also dismissed.

In 2016, Sithirapathy was offered a role at the firm’s head office in Switzerland. When she declined for personal reasons, Schmidt, who was acting country manager, asked why, saying to Sithirapathy: “You are not married, you don’t have children and you do not have a boyfriend.”

Sithirapathy made a complaint of direct sex discrimination, sexual harassment or harassment related to sexual orientation by perception.

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In the same meeting, Schmidt told her an anecdote about the Swiss office’s ‘tolerance’ of a lesbian staff member, which she claimed was harassment related to sexual orientation by perception.

Schmidt also said to Sithirapathy: “Your age will prevent you from commanding a higher salary” than 120,000 Swiss francs per annum in Switzerland, which she said was direct age discrimination and age-related harassment.

Sithirapathy told the tribunal she felt “humiliated, upset and angry” about the comments.

She also sought a promotion to senior legal counsel in January 2017, however Ruf, the company’s head of legal, told Sithirapathy’s UK manager that she was not ready for promotion and was not performing at the same level as the group’s three senior legal counsel. The UK manager shared the feedback with Sithirapathy in a meeting in February.

During a subsequent appraisal meeting on 10 March 2017, Ruf gave the opinion that the claimant had done a good job in the last year but that she was not ready for the next level.

Sithirapathy told her UK manager three days later that “it sounded like I was delivering performance-wise, but that the limiting factors for title change were my age and duration of service” and made a complaint of age discrimination.

Adrian Martin, partner at Burges Salmon, told People Management that employers may take some comfort from the decision that the comments did not cross the line to amount to harassment, and that it suggests careless talk may not necessarily cost employers at tribunal.

“The reference to not encouraging a culture of hyper-sensitivity is derived from a previous EAT judgment and may give employers a defence in certain circumstances,” he added.

But, Martin said: “This decision certainly does not give carte blanche to managers to express themselves thoughtlessly or clumsily and employers would be well advised to ensure that managers understand the need to communicate in a professional and appropriate manner at all times – and are equipped to do so.”

Paul Holcroft, managing director at Croner, added that the case did not set a precedent, and was not binding on other courts. Given that there were also strong grounds for appeal in this case, he advised employers to carefully consider how the language used in the workplace could impact their workforce, and consequently their business.

“From an HR perspective, a typical response to dealing with a similar issue will be to act cautiously when communicating with an employee and essentially ‘watch what one says and how’ in order to avoid tribunal claims of this kind,” he explained.

David Ward, partner in the employment team at Blacks Solicitors, added that it was the overall circumstances that tipped the balance away from a finding of harassment in this judgment.

“The key to reducing this risk and claims of discrimination is staff cultural and self awareness, and education on equal opportunities, anti-harassment and bullying,” Ward advised, adding that regular training and refreshers on this topic minimise the risk of issues arising and demonstrate firms take reasonable steps to prevent such behaviour.

Neither Sithirapathy nor PSI CRO UK could be reached for comment.