No harassment: Avoiding an oversensitive workforce
The Employment Tribunal (ET) has dismissed a series of claims concerning discrimination, unfair and wrongful dismissal, harassment, and more, in order to avoid encouraging ‘a culture of hyper-sensitivity’, in Sithirapathy v PSI CRO UK Ltd.
The claimant worked as a lawyer for PSI CRO UK. She was offered a role at the company’s branch in Switzerland but was told that her age “will prevent [her] from commanding a higher salary”. Due to unrelated personal reasons, she declined the role.
The claimant told the ET that she was shocked by her employer’s response and was unaware that they knew so much about her personal life. She cited that her employer had asked what her personal reasons were for declining the role and allegedly went on to say that she doesn’t have a boyfriend, isn’t married nor does she have any children.
Later that same year, the claimant applied for a promotion to Senior Legal Counsel and was told that she was not ready to undertake the role as she was performing at the same level as existing Senior Legal Counsels. She was also told that she was too young to expect to be promoted.
The following year, she accepted a non-legal role in Switzerland and her role in the UK was terminated shortly before she began the new role. The ET did not accept this was to prevent her from having continuous service.
One month after moving to Switzerland, the claimant’s new role was terminated due to a “reorganisation” of the team, after which she made an unsuccessful attempt to return to her role in the UK branch because the role had already been filled.
The claimant bought 42 claims to the ET including wrongful dismissal, unfair dismissal, breach of contract, as well as age and sex discrimination.
Regarding her discrimination, breach of contract, and harassment claims, the ET agreed with the employer’s argument that the comments made were to explain to the claimant that her personal circumstances would not be a problem at the Swiss branch.
The ET judge went on to say that: “The comments 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. We have concluded that, in this case, taking into account the context of the discussion, these comments did not cross the line such that they amounted to unlawful harassment.”
Although this case does not set a precedent and is not binding on other courts, it offers a different perspective on employee relations. Specifically, from an HR perspective, a typical response for dealing with a similar issue will be to act cautiously when communicating with an employee and essentially ‘watch what one says and how’, in order to avoid tribunal claims of this kind. Now, however, it seems that the scope for determining what is discriminatory behaviour has been widened, with particular focus on avoiding a culture of so-called hypersensitivity.
Keeping in mind that there may be ground for appeal, employers should continue to carefully consider how their wording could impact their workforce, and consequently their business. A different tribunal may reach a different conclusion, and so might an appeal court if this case reaches that stage.