Banter can amount to sexual discrimination

first_imgBanter can amount to sexual discriminationOn 14 Mar 2000 in Personnel Today Related posts:No related photos. Previous Article Next Article Comments are closed. Employers should take an overview of sex bias claims, not treat comments inisolation, appeal tribunal rulesWhen does sexual banter amount to sex discrimination? This issue isrevisited by the EAT in Driskel v Peninsula Business Services (2000).Driskel was employed by Peninsula as an advice line consultant in May 1994.Her role involved giving employment law advice over the telephone. In 1995,Huss became her departmental head. As time went by, his relationship withDriskel deteriorated. Driskel alleged this was caused by, among other reasons,Huss’s penchant for sexual banter.On 4 June 1996, a vacancy arose for the post of senior advice lineconsultant (effectively Huss’s deputy). Driskel applied for the job. On theevening before the interview, Driskel alleged (and Huss did not dispute) thatHuss told her she had better attend the interview in a short skirt andsee-through blouse, showing plenty of cleavage, and make an attempt (orpossibly a vain attempt) to persuade him to give her the job. Driskel did not object to this comment at the time. When she turned up forthe interview the next day, she pointed out she was not wearing either asee-though blouse or a mini-skirt to which he replied that would have to do,and asked if she would like some tea.Driskel subsequently complained of sex discrimination. The employersinvestigated her complaint but rejected it. There then followed what the EATdescribed as much toing and froing with the upshot that Driskel advised heremployer that she refused to work even with the senior advice line consultantunless Huss was moved elsewhere. The employer’s response was that this was not practical and that if Driskelrefused to work with her departmental head, her employment would have to beterminated. This is what duly happened. Driskel then brought employmenttribunal proceedings complaining of both unfair dismissal and sexdiscrimination.The employment tribunal dismissed both her complaints: as far as thecomplaint of sex discrimination was concerned, although the tribunal generallypreferred the evidence given by Driskel to that of Huss, it concluded that thevarious incidents were trivial and did not amount to sexual harassment asDriskel had not complained about Huss’s behaviour at the time. Furthermore, thetribunal accepted that Huss’s remarks prior to the interview were intended to bejocular and incapable of being taken seriously and therefore were notdiscriminatory.As far as the complaint of unfair dismissal was concerned, the tribunalaccepted that the reason for dismissal in the present case was some othersubstantial reason, namely the breakdown in the relationship between Huss andDriskel, and considered this was a potentially fair reason for dismissal. Itconcluded that the employer had investigated Driskel’s complaint in areasonable manner and acted reasonably when faced with her demand that, ineffect, the employers should either dismiss Huss or herself.EAT decision Allowing the appeal against the tribunal ruling on the sex discriminationissue, the EAT ruled:• The tribunal was wrong to look at each incident of alleged sexualharassment in isolation. It should have considered whether the remarks overallamounted to less favourable treatment and a detriment within the meaning ofsections 6(2)(a) and (b) of the Sex Discrimination Act 1975;• The employment tribunal was also wrong in treating the sexual bantersuffered by the complainant in the same way as if the remarks had been made toa male employee. The tribunal should have asked itself whether the complainantwas the victim of sex based treatment;• Had the tribunal approached the matter correctly, it would have put thedepartmental head’s remark on the evening before the interview in the contextof the latest in a line of incidents and would have found that the remark wasobjectively discriminatory since it sought to exploit the promotion interviewby reference to the sex of the interviewee and interviewer. In the absence of anon-discriminatory explanation, this amounted to unlawful sex discrimination.By Anthony Korn, a barrister at Barnards Inn Chamberslast_img

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