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Meredith Hurst Friday, February 4, 2011

This week has seen two cases (one reported and another ongoing) that would not seem out of place in a "Carry On" film.  The first concerns Mr K an employee of a well respected department store who claims he was slapped on the bottom by a female colleague.  He claimed that when he asked her to stop it she replied: "I do it to all the boys". 

This raises two interesting issues.  The first is that of the over-sensitive claimant.  The second is the idea of the male victim.  Dealing with the first issue, the definition of harassment does anticipate that there may be cases of the "hypersensitive" complainant.  For conduct to amount to harassment it must firstly be unwanted.  Mr K says that is was.  It also must have the "purpose or effect" of violating the dignity of the complainant.  It is the "effect" with which we are primarily concerned here.  In determining whether the conduct has the required effect, the tribunal will consider the matter as the complainant may have perceived it, so as to imply a subjective text into what is principally an objective one. 

An employee who is known to have robust views themselves may be less likely to convince a tribunal that the conduct in question had the "effect" of violating their dignity.  In the case of Mr K, the alleged perpetrator was a 68 year old woman of 40 years' unblemished service.  She alleged that she was simply touching him in a motherly way.  The suggestion is that Mr K was certainly overly sensitive but one wonders how this case would be viewed were the victim female. 

This brings us on to the second issue.  Can a man be harassed?  The answer is yes, of course he can.  The protection afforded by the harassment provisions of the Sex Discrimination Act (and now the Equality Act 2010) provide the same level of protection for men as well as women.  Whilst the majority of cases do concern male harassment against females, this is not always the case.   

The second case reported this week is Bowater v London Hospitals NHS Trust in which the court of appeal held that a lewd comment did not justify gross misconduct.   Miss B, a staff nurse employed by the Trust intervened to restrain a fitting patient who was naked, saying, "It's been a few months since I've been in this position".  Six weeks later she was dismissed for gross misconduct despite her unblemished disciplinary record and the fact that no member of the public or a patient heard the comment. 

The employment tribunal held that B was unfairly dismissed; finding that at worst, the comment could have been described as lewd.  It went on to find that a "large proportion of the population" would have considered it to be merely humorous.  The employment appeal tribunal disagreed but on appeal, the court of appeal reinstated the original decision.  It was common ground that the comment was intended to be humorous and the employment tribunal was clearly aware of the context. 

Both of these cases are a barometer for our times when words and actions can quite easily cost people their livelihoods.  We welcome your views and opinions.  Should Mr K win his case and should Miss B have been dismissed? read more about the law