The claimant was employed for three months by the respondent as a cleaner.  She subsequently resigned in February 2020 and then claimed that she was subject to unlawful harassment on the basis of sex. She also brought a claim for constructive unfair dismissal.

The claim initially arose out of Whatsapp messages sent in the early hours of Boxing Day 2019.  The Tribunal did note that punctuation, grammar and spelling did not trouble either party. The respondent sent a message stating:

  ‘I am single.  If you fancy chatting.  I have been single about three moths [sic]’

The claimant told the respondent that he was drunk and to go to bed.  This was clearly seen as a humorous rejection of the respondent’s advance. This did continue with messages continuing outlining that the claimant was ‘sexy’ and ‘beautiful’.  The claimant did not reply to those messages with the respondent apologising the next day blaming ‘a few too many drinks’.  The respondent then sent a message about work and the claimant never said anything referring to the earlier messages or the apology for that matter.  There continued to be messages relating to work and sickness from work without anything indicating stress or harassment as a result of the messages that had been sent on Boxing Day.

Another pertinent matter in the claim was that the claimant had outlined that she had difficulties cleaning at a certain location in the evenings.  She stated that she was available to work 10am to 2pm Monday-Friday as it fit in with her childcare responsibilities.   Indeed, the claimant stated that she would have to look for work elsewhere considering that evening work was only being offered.

An issue relating to overpayments was also raised and it was at this point that the claimant made reference to the ‘creepy’ messages at Christmas.  The claimant was on sick leave for the last four weeks of her employment with her resignation taking place on 17th February.  It must be noted that she took up a trial at another job on 14th February (when she had been on sick leave) and had been successful.

The unfair dismissal claim was rejected as the claimant did not have the requisite service.  It was also clear that the claimant was leaving because of the issue of hours rather than any breach of contract so it would not have succeeded anyway.  On the issue of harassment, the Tribunal stated:

“This had been no more than a drunken WhatsApp exchange between two people of roughly similar ages, even though one person had been the employer and one person the employee.  There had been no threatening or abusive behaviour.  There had been an immediate apology and no recurrence of the behaviour.  It had been an exchange in which the claimant had made it plain that she had regarded the approaches as humorous.”

There was also reference to Forbes v LHR Airport [2019] where it had been held that an apology and immediate cessation of the conduct should be taken into account as to whether there had been harassment.   As a result, the claim was dismissed.

Practical Lessons

It is not uncommon for Industrial Tribunal cases to arise out of conduct at the Christmas Party. This case is similar only in that it relates to text exchanges around the festive time when there had clearly been alcohol consumed.  The consumption of alcohol does not negate matters of harassment.  However, it is clear that the decision in Forbes does provide some way out where there is an immediate apology and cessation of the impugned behaviour.   The Tribunal also looked at the effect that it had on the claimant and that it had not intended to violate the claimant’s dignity, nor did it put the claimant in fear the case was dismissed.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/