Employment Law Case Update: Direct Sex Discrimination and Unfair Constructive Dismissal

Acting swiftly and appropriately when a grievance is raised is crucial to the management of the situation and to reduce the likelihood of it proceeding to Acas.  Our Employment Law team to reviews the case of Mrs S Stannard v Overseas Courier Service (London) Limited 2021 in which so-called "banter" in the office ended in tribunal as it was not nipped in the bud.

Mrs Stannard worked for the company as a National Sales Manager until her resignation in August 2018.  She claimed a “sexist culture” existed at the company, and that inappropriate and sexualised comments were regularly directed at her and other female members of staff. Colleagues made many comments regarding her body and outfits including: “You always wear short skirts to get the business!”, and “Why not use your best skills - your legs?”.

When she was pregnant, comments were also made about the size of her breasts such as that she was “bursting out of [her] shirt”. The Employment Tribunal (ET) was satisfied that the company “tolerated sexist and offensive comments by men directed at women, seeing such conduct as banter”.

In 2017, Mrs Stannard suffered a slipped disk. She was on sick leave for three weeks and when she returned she alleged there was a “step change” in the way she was treated. Her work came under increased scrutiny and one of the directors claimed she was not working enough hours. Both directors of the company asked Mrs Stannard when she planned to retire, with one of the directors commenting that her husband “earns well”. The ET found that such a comment “would not have been made to a man” and was “intricately connected to her status as a wife and mother”.

Mrs Stannard raised a grievance in 2018 after coming to the belief that the newly appointed head of e-commerce was encroaching on her duties and had in fact been hired to replace her. Unsatisfied by the outcome of her grievance and subsequent appeal, Mrs Stannard filed a claim against the company for direct sex discrimination and harassment and unfair constructive dismissal.

The ET found that the inappropriate comments made to Mrs Stannard about her appearance were directed at her because she was a woman. Judge Gumbiti-Zimuto wrote that “the comments are at times insulting, other times lascivious, other times attempts at humour but always demeaning and unwanted”. Such comments amounted to unfavourable treatment of Mrs Stannard based on her sex, and had the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Her claims for direct sex discrimination and harassment and for harassment related to sex therefore succeeded.

Mrs Stannard also succeeded in her claim for unfair constructive dismissal with the ET concluding that the company had committed a repudiatory breach of contract. In reaching this decision, the ET considered the company’s sexist culture and reasoned that the comments made about Mrs Stannard retiring “were not treating her respectfully and with trust and confidence”. The ET was also critical of the company’s inadequate handling of Mrs Stannard’s grievance appeal. 

This case shows how a sexist workplace culture that is allowed to continue unchecked can be costly to employers. Employers should pay attention to the tone of conversations among employees, and not be too quick to dismiss certain comments as “banter”. Employees should have clear avenues to report behaviour that makes them uncomfortable, and any allegations of harassment should be taken seriously.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.