Case Study: Employment tribunal dismisses harassment case to avoid encouraging ‘culture of hyper-sensitivity’
In this case, an employee brought claims of sexual harassment and harassment relating to sexual orientation against PSI CRO UK after she was asked why she had turned down a job that was based abroad, given she was an unmarried woman without children.
The employee also brought claims of age discrimination and age-related harassment, because she alleged that she was not promoted because of her age.
Claims made in the case
Claims of age discrimination
By way of background, Ms Sithirapathy (the claimant) was employed by PSI CRO UK as legal counsel from 1 August 2014. She moved to Switzerland on 4 September 2017 and was dismissed on 19 October 2017, due to re-organisation of the department.
In November 2016, Ms Sithirapathy and her manager, Mr Schmidt, had a meeting to discuss the possibility of Ms Sithirapathy accepting a position in Switzerland. During the meeting, Mr Schmidt told Ms Sithirapathy that her age would ‘prevent [her] from commanding a higher salary than 120,000 Swiss francs’ per annum in Switzerland, which she claimed was direct age discrimination and age-related harassment.
Claims of sexual harassment and harassment relating to sexual orientation
During this meeting, Ms Sithirapathy said that she was not interested in accepting a role in Switzerland at that point for personal reasons. Mr Schmidt asked her what those personal reasons were and said ‘You are not married, you don’t have children and you do not have a boyfriend’. Ms Sithirapathy said that she was shocked by the comments and that the discussion made her feel uncomfortable.
Ms Sithirapathy said that in the same meeting, Mr Schmidt told her that the Swiss office was very tolerant of a lesbian staff member in that office, which she claimed was harassment related to sexual orientation by perception. Mr Schmidt said that in telling Ms Sithirapathy this, he was trying to explain that the sexuality or other personal circumstances of employees were not an issue for the company.
‘not yet at the same level as someone with many years’ experience’
In late 2016, Ms Sithirapathy spoke to her UK manager about her career development and promotion opportunities. The UK manager spoke with Ms Ruf, head of legal, who was based in Switzerland. Ms Ruf felt that Ms Sithirapathy was not ready for promotion to senior legal counsel and the UK manager gave this feedback to Ms Sithirapathy in February 2017.
Ms Sithirapathy’s appraisal took place in March 2017 and was carried out by Ms Ruf. Ms Ruf’s overall assessment in the appraisal was that Ms Sithirapathy had met expectations in respect of the areas for assessment and for individual goals. The appraisal form concluded by recording that Ms Sithirapathy was keen to work towards promotion to senior legal counsel.
Ms Ruf’s opinion was that Ms Sithirapathy had done a good job in the last year, but that she was not yet ready for the next level. Ms Sithirapathy was very disappointed about being told she was not ready to be promoted. Ms Ruf told her that developing management skills and sound judgment came with experience and that Ms Sithirapathy was still at the beginning of her professional career. She said that Ms Sithirapathy was still young and that it was normal that she was not yet at the same level as someone with many years’ experience.
On the same day as her appraisal, Ms Sithirapathy spoke informally to the Deputy Head of Project Management for the PSI group. Ms Sithirapathy said she had suffered age discrimination during the appraisal. She also raised concerns about the comments that had been made to her by Mr Schmidt in November 2016.
The employment tribunal (ET) dismissed all claims brought by Ms Sithirapathy.
Employment tribunal findings
Age discrimination claims – dismissed
The ET accepted that the comments made by Mr Schmidt about age and salary referred to the fact that in the Swiss labour market there is generally considered to be a link between age and salary.
The ET also found that Ms Ruf’s view that Ms Sithirapathy was not ready for a senior legal counsel position was based on Ms Sithirapathy’s performance, it was not related to her age.
It, therefore, dismissed her claim of age discrimination and age-related harassment.
Sexual harassment and harassment relating to sexual orientation claims – dismissed
The ET stated that Mr Schmidt’s question about Ms Sithirapathy’s personal life was ‘very blunt and clumsily put’. However, it accepted Mr Schmidt’s account that he would have made the same comments to a male employee. It also accepted that these were relevant issues to consider in the context of a discussion about possible relocation where the company might be responsible for relocation costs, including costs relating to the employee’s family.
The ET accepted that, although Mr Schmidt’s comment about the Swiss office’s tolerance of a lesbian member of staff was, again, very clumsy and awkward, it was his intention to show that the personal circumstances of employees were not an issue for the company.
Dismissing the claims of sexual harassment and harassment related to sexual orientation by perception, the ET concluded that:
‘We bear in mind the importance of not encouraging a culture of hyper-sensitivity or of imposing legal liability to every unfortunate phrase’.
The decision in this case shows that some comments do not cross the line to amount to harassment.
However, it is important that employers ensure that line managers are appropriately trained and understand that they need to communicate in a ‘professional and appropriate manner’.
Managers need to consider how the language they use can impact staff and that careful communication can avoid an employment tribunal claim of this kind.
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