Taking action counts!

A bank manager who accused her employer of failing to take seriously her complaints of harassment lost her claim for constructive dismissal.

The Facts

In Tansey –v- Halifax Bank of Scotland, Mrs Tansey raised allegations of sexual harassment going back over a number of years. The first alleged incident she said took place in 1998 when a colleague tricked his way into her hotel room on a business trip and stripped naked. She also claimed she was taken to lap dancing clubs and was subjected to suggestive comments by colleagues during her employment. Other allegations were that employees watched pornography on their laptops during working hours, swapping DVDs and continually bragging about their sex lives.

She was employed by the bank for 17 years. She finally left work through stress and later resigned because she felt returning was untenable. She claimed that she had been unable to come forward about her mistreatment until 2007 because she feared for her job. She claimed sexual harassment, discrimination and constructive unfair dismissal. She argued that there was a ‘tolerance of sexual behaviour’ at the bank. She claimed over £600k in compensation.

The Decision

The bank denied the allegations stating that Mrs Tansey would not have been promoted if her allegations were true and there was such a culture of ‘tolerance’. Evidence was also put forward that Mrs Tansey was 'no cowering wallflower' and was not as innocent a victim as she later claimed.

The Employment Tribunal accepted the arguments of the employer and found in their favour. It said that if the culture and the behaviour towards Mrs Tansey had been as bad as she claimed she should have complained earlier. It also held that Mrs Tansey 'did not believe these were acts of sexual harassment at the time'. Although the Employment Tribunal accepted the incidents did happen it rejected her account that she failed to complain until 2007 as she was afraid of losing her job. The tribunal panel 'understood that it is difficult for a woman subjected to sexual harassment to make a complaint', but added it would not be 'just and equitable' to accept her reasons for delay. The Tribunal also said HBOS had properly investigated her complaints, even though it did not uphold them.

Practice Points

Although a positive decision for the employer it does not mean that an employer will always succeed where a claimant delays in raising an allegation. A different tribunal could well have reached a different conclusion.

What is interesting in this case is that the employer was found to have taken steps to investigate the allegations when they were eventually raised. It is important that employers take seriously complaints of discrimination and harassment and have the processes and personnel in place to deal with complaints and take them seriously.

Another interesting note about this case was that many of the incidents took place at hotels or ‘off site’, albeit at work or client events. Staff should be reminded that policies which apply whilst they are at work apply equally to when they are off site at a work or other work-related event. The line between what is a work-related and a true social event has become blurred over recent years with case law expanding the scope of what is known legally as ‘vicarious liability’ for employers.

Employers should remember that clear policies on equal opportunities and harassment, backed up by policies dealing with grievance and disciplinary are a priority. These policies should be monitored and viewed to ensure they are effective. A culture that such behaviour is not tolerated linked to an encouragement of staff to come forward to report a complaint is key. However, more importantly, employers must train their people in acceptable behaviours. If an employer takes all reasonable steps to stop such behaviour happening in its workplace it may have an opportunity to defend successfully claims of harassment and discrimination. With the new Equality Act due in October 2010, now is the time to make sure your policies and practices are robust.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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