Background:

The claimant was employed by the respondent from February 2008 working as site coordinator at Parkside Primary School.  In April 2021, the respondent received four complaints from female members of staff which were allegations of sexual harassment.  The Head Teacher investigated these complaints but this was altered to another on the basis that the respondent believed that it being the Head Teacher could dissuade others from coming forward.

The nature of the complaints related to comments made by the claimant.  This included matters such as a ‘quickie’ in the cupboard, about whether a staff member had a ‘designer vagina’ and a range of other comments.  The claimant suggested that they were not sexual in nature.  In any event, the claimant stated there was institutional banter of this sort and that he was being singled out for a range of matters including his Trade Union representation.

A panel of Governors oversaw the disciplinary hearing finding that six of the allegations of sexual harassment were proven and that the claimant be summarily dismissed without notice or payment in lieu of notice.  The reason for dismissal was noted as conduct.   The claimant appealed this unsuccessfully.

Outcome:

The Tribunal examined the procedure and the substantive reasons for the dismissal.  The claimant’s suggestion that the comments made were not sexual were not accepted by the Tribunal.  For example, the Tribunal stated that the claimant accepted calling people ‘sexpot’ and that it was clearly capable of amounting to sexual harassment.  As a result of these factual findings, it was held that there was a genuine belief in the misconduct from the respondent and the decision to dismiss was fair.

Furthermore, the Tribunal found that there was no reasonable prospect of success. The claimant was aware of the evidence, he was aware of the procedure that had been followed and he knew that sexual harassment was a very serious matter which he had admitted in relation to the comments made.  The Tribunal found that providing costs of £10,000 would be fair considering that the respondent is a public body and it would not even cover the fee of Counsel.

Practical Guidance for Employers:

This case demonstrates an issue of sexual harassment before the Tribunal and the notorious defence of ‘banter’.  To this end, the claimant tried to argue that there was a situation of institutional banter and that his comments were framed in that manner.  However, in looking at the nature of the comments it was not a difficult decision for the Tribunal to find that they were capable of being sexual harassment and that the respondent genuinely believed that there had been sexual harassment allowing for a dismissal based upon conduct.  It reiterates the importance of ensuring that employees have adequate periodic training on comments in the workplace, including matters pertaining to potential sexual harassment.

To view the full case, click here: https://www.gov.uk/employment-tribunal-decisions/mr-k-duffy-v-east-riding-of-yorkshire-council-1805951-slash-2021