Emma Nunn v G and MJ Crouch and Son Ltd (t/a Crouch Recovery)

Whether conduct is unwanted, and whether it had the prohibited purpose or effect required for sexual harassment, are matters of fact to be assessed in their full context. An employment tribunal may take account of a claimant’s participation in sexual banter, apparent enjoyment of particular comments, and failure to make a contemporaneous complaint. Those matters are evidential only. A tribunal must remain alert to the possibility that a person tolerated conduct in order to fit into the workplace.

There is no universal requirement for a tribunal to investigate that possibility whenever a woman appears to join in or laugh at sexual conduct. Where the tribunal has considered the issue and reached findings open on the evidence, the EAT will not interfere.

The claimant, an accounts manager employed by a vehicle-recovery company, brought claims including sexual harassment, harassment related to sex, whistleblowing detriment and unfair dismissal. Following an 11-day hearing, the Leicester Employment Tribunal rejected all but one allegation of sex discrimination.

The appeal concerned four allegations of sexual harassment: sexually explicit WhatsApp messages from a director, sexualised office comments by colleagues, and a text message from a former director. The tribunal found that the conduct was not unwanted by the claimant and did not have the prohibited purpose or effect.

The claimant appealed, contending that the tribunal had wrongly relied on her apparent participation in office banter and her failure to complain contemporaneously, without properly considering whether she had merely tolerated the conduct to fit in at work.

1. Appeal dismissed. The Employment Tribunal was entitled to find, on the evidence and in its full factual context, that the alleged conduct was not unwanted by the claimant and did not have the prohibited purpose or effect required by section 26 of the Equality Act 2010.

2. The tribunal’s findings concerning the sexually explicit WhatsApp exchange were not legally erroneous. Although the messages were vulgar, offensive and grossly inappropriate for the workplace, the tribunal could consider the close personal relationship between the claimant and Adam Crouch, her role as his confidante, her response to the messages, and the absence of any complaint until proceedings were under way. Those matters supported findings about both her state of mind and his purpose.

3. The tribunal was also entitled to consider that the claimant sometimes joined in, laughed at, or appeared to enjoy sexualised office comments, and that she made no contemporaneous complaint about them. The guidance in Weeks v Newham College of Further Education, [2012] WL 2191433, requires sensitivity to the circumstances and caution about placing excessive weight on timing. It does not prohibit reliance on a failure to complain as part of the overall evidential assessment.

4. There was no basis for finding that the tribunal had overlooked the possibility that the claimant tolerated conduct to fit into the workplace. It addressed that possibility expressly and accepted that she might have tolerated some comments. It nevertheless had evidence capable of supporting its conclusion that the particular comments were not genuinely unwelcome and were not perceived as having the prohibited effect.

5. The proposed general rule that a tribunal must, in every sexual-harassment case where a woman appears to play along with offensive conduct, investigate whether she was fitting in at work was rejected. The question remains one of fact and context.

• Employment Appeal Tribunal: dismissed the claimant’s appeal in [2025] EAT 187.

• Employment Tribunal (Leicester): judgment sent on 5 December 2023 following an 11-day final hearing. It rejected the sexual-harassment allegations challenged on appeal.