Weeks v Newham College Of Further Education

Whether unwanted sex-related conduct creates the statutory proscribed environment is a fact-sensitive question. The tribunal must consider all the circumstances, including the conduct’s context, frequency, whether it was directed at the claimant, the wider workplace atmosphere and the timing of any objection. None of those matters is determinative, and caution is required before treating a delayed complaint as significant.

Unwanted conduct does not itself establish the required effect. An environment may be created by a single incident, but the tribunal must decide whether, viewed objectively and having regard to the claimant’s perception, it had the statutory effect. That evaluative conclusion is ordinarily challengeable only for perversity. Under section 4(2) of the Sex Discrimination Act 1975, both falsity and absence of good faith are required to disapply victimisation protection.

The claimant, a teacher at the respondent college, appealed from an Employment Tribunal judgment delivered on 29 March 2010. Following a two-week hearing, the Tribunal dismissed claims concerning public-interest disclosure detriment, sexual harassment and victimisation.

The appeal was confined to two legal issues. First, the claimant contended that the Tribunal had wrongly rejected her sexual-harassment claim arising from an offensive cartoon and occasional gender-related remarks in the staff room. Secondly, she challenged the Tribunal’s disposal of a victimisation complaint relating to a back-to-work interview after she had made allegations against colleagues.

The central questions were whether the Tribunal had taken irrelevant matters into account when applying section 4A of the Sex Discrimination Act 1975, and whether its error concerning section 4(2) affected the victimisation outcome.

1. Appeal dismissed. The Employment Tribunal was entitled to reject the sexual-harassment claim. It had correctly applied the three-stage analysis in Richmond Pharmacology Ltd v Dhaliwal, [2009] IRLR 336, and its conclusion on the statutory effect of the conduct was one of fact. The appeal could succeed only if that conclusion were perverse.

2. Under section 4A of the Sex Discrimination Act 1975, context is decisive. The Tribunal could properly take account of the fact that much of the conduct was not directed at the claimant, its occasional nature, the wider staff-room atmosphere and the timing of her objection. Those matters do not prevent a finding of harassment. A tribunal should be cautious about attaching excessive weight to a delayed complaint, since immediate objection may be difficult personally, socially or culturally. Their weight nevertheless remained for the Tribunal.

3. An environment is a state of affairs which may be created by one incident but whose effects endure. A single act can therefore suffice in an appropriate case, consistently with Driskel v Peninsula Business Services Ltd, [2000] IRLR 151. Unwanted conduct is, however, a distinct issue from whether the conduct had the proscribed effect. The Tribunal was entitled to find that, despite the offensive and unacceptable cartoon, the conduct did not create the requisite environment for this claimant and could not reasonably be regarded as doing so in all the circumstances.

4. The Tribunal erred in treating section 4(2) as disapplying section 4(1) if either falsity or lack of good faith were established. The statutory conditions are conjunctive. The error was immaterial because the Tribunal had independently found neither less favourable treatment nor treatment caused by a protected act. Its factual findings on the back-to-work interview were not perverse.

5. The Tribunal was also entitled, on the judgment read as a whole, to reject further alleged remarks. Its reference to one witness’s demeanour did not stand alone but formed part of its overall assessment of the evidence and the claimant’s credibility.

• Employment Appeal Tribunal: appeal dismissed on 4 May 2012.
• Employment Tribunal, East London: judgment delivered on 29 March 2010 dismissing the claimant’s claims for public-interest-disclosure detriment, sexual harassment and victimisation.