An employment tribunal has dismissed various complaints of alleged harassment brought by an employee against her former employers, after the judge cautioned against “encouraging a culture of hyper-sensitivity”.
A lady called Miss N Sithirapathy, formerly of pharmaceutical company PSI CRO UK, filed 42 claims of sexual harassment, harassment related to sexual orientation and age-related harassment against the company and its employees; Mr Schmidt and Ms Ruf, after they asked why she rejected a job based abroad (Switzerland) as she is an unmarried woman without children. She also believed that, at a later date, she wasn’t promoted due to her age.
However, the tribunal dismissed the complaints, finding that the comments made were “unfortunate and awkward. However, we bear in mind the importance of not encouraging a culture of hyper-sensitivity or of imposing legal liability to every unfortunate phrase”.
It was concluded that these comments made by Mr Schmidt and Ms Ruf did not amount to unlawful harassment.
In 2016, Miss Sithirapathy was offered a role at the firm’s head office in Switzerland, which she declined due to personal reasons. Mr Schmidt, who was the acting country manager, questioned why, saying to Miss Sithirapathy: “You are not married, you don’t have children and you do not have a boyfriend.”
Miss Sithirapathy made a complaint regarding harassment related to sexual orientation by perception as in the same meeting, Schmidt told her about the Swiss office’s ‘tolerance’ of a lesbian staff member, which she claimed was harassment related to sexual orientation by perception.
Mr Schmidt also said to Miss Sithirapathy: “Your age will prevent you from commanding a higher salary” than 120,000 Swiss francs per annum in Switzerland. She believed this to be direct age discrimination and age-related harassment.
Miss Sithirapathy also tried for a promotion to senior legal counsel in January 2017, however Ms Ruf, the company’s head of legal, told Miss Sithirapathy’s UK manager that she was not ready for promotion as she wasn’t quite performing at the same level as the group’s three senior legal counsel. Following this, the UK manager shared Ms Ruf’s feedback with Miss Sithirapathy in a meeting.
Miss Sithirapathy made a complaint of age discrimination due to this as she felt “it sounded like I was delivering performance-wise, but that the limiting factors were my age and duration of service.”
Employers may take some comfort from the decision that the comments did not cross the line to amount to harassment, and that it suggests careless talk may not necessarily cost employers at tribunal. However, this decision doesn’t give managers the ability to express themselves freely, without thinking. Employers are well advised to make sure that managers understand the need to communicate in a professional and appropriate manner at all times.
In conclusion, the case did not set a precedent and was not binding on other courts. Given that there were also strong grounds for appeal. It is advised that employers carefully consider how the language used in the workplace could impact their workforce, and consequently their business. An ideal response to dealing with a similar issue would be to act with caution when communicating with an employee and essentially think about what you say beforehand, in order to avoid tribunal claims similar to this.
If you need support with any potential or upcoming cases then please do not hesitate to contact the team on 01924 827869 or contact us directly here.
