Harassment

Employment Law – Sexual Discrimination – Harassment – Victimisation - Tribunal Findings – Requirements

The case of Switalski v F&C Asset Management Plc and Others [2008] concerned an allegation of sexual discrimination against a female. The employee in this case was a lawyer working in the city with the first respondent employer. A merger occurred in October 2004. After the merger the second respondent in this case took control of the legal team. The legal team was headed by the employee.

The third respondent was the head of human resources of the employer, whilst the fourth respondent had the position of chief financial officer. The employee brought a claim stating that the second respondent took every opportunity to marginalise and undermine her during her employment with the employer. The employee believed that this was because she was a woman.

The second respondent's argued that any management decisions which were made by him and which impacted on the employee had been decided in line with the best interests of both the business and the employer.

In June 2006, the employee asked the human resources department to assist her in resolving her relationship with the second defendant. Then, she submitted a formal grievance in line with the proceedings that were in place and issued an originating application before the employment tribunal, making a complaint under the Protection from Harassment Act 1997. Then, in November 2006 she became subject to disciplinary proceedings.

Eventually, the employee resigned in September 2007, claiming constructive dismissal. She brought a claim for sex discrimination, harassment and victimisation. The tribunal, relying on previous authorities, upheld al of the employee's complaints.

Accordingly, the respondents appealed to the Employment Appeals Tribunal against this decision.

The respondents argued that the tribunal had been erroneous in interpreting the law, and had therefore failed to carry out the necessary comparative exercises. Furthermore, the respondents argued that the tribunal had not suitably analysed the respondents’ evidence. Finally, they argued that the tribunal did not give adequate reasons as to why the decision on the employee’s complaints was reached.

The appeal was dismissed for the following reasons:

• It was held that the tribunal had correctly applied the law to the facts of the case as presented before it.
• It is settled law that in such circumstances a tribunal had to consider each allegation of discrimination raised by an employee. Once each allegation had been considered, the tribunal has to examine whether the complaint of unlawful direct discrimination had been made out.
• In this case, the structure of the tribunal's reasons for their decision indicated that the tribunal had considered the requirements to carry out the requisite comparative exercises. Furthermore, there was nothing in the tribunal's reasons which indicated that it had failed to take into account the respondents' evidence. Accordingly, the tribunal’s decision was allowed to stand.
• A tribunal is not required to create “an elaborate formalistic product of refined legal draftsman ship”.
• It was held that the parties in any case had a right to know why they had won or lost. Furthermore, if a case is appealed, an appeal tribunal should be able to discern what the tribunal’s findings were and how that decision was reached. In this case, even though a stringent analysis of the tribunal's reasons might reveal minor inconsistencies and some use of loose language, it was deemed that the tribunal had adequately explained its reasoning and had demonstrated that it had correctly applied all the relevant law in reaching its decision.

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.