The Claimant in this case worked as a Director, Investor Relations and Business Development for a global asset management firm founded by Mr Serra. The Claimant began working with the Respondent in 2013. The Claimant and Mr Serra had known each other since university. Whilst there was an argument about their level of closeness it was not in dispute that Mr Serra and the Claimant were friends.
The Tribunal also accepted that the Claimant and Mr Serra would speak “frankly and informally” to each other and that they could be “impulsive and volatile”. It was also known that Mr. Serra had a tendency to make “wholly inappropriate comments”.
On one occasion Mr. Serra commented on the Claimant’s breasts and said she would do anything for her clients “including prostitute herself” in front of clients. The Claimant was very angry and Mr. Serra apologised and sent her a bunch of flowers.
In 2019 at a breakfast meeting the Claimant was informed that she was going to be demoted and was given “very critical” feedback on her job performance by Mr Serra. This was despite the fact that the Claimant had received bonuses totalling over two million pounds over the course of her employment. He described an occasion where he believed the Claimant had been rude in a meeting but explained that he knew that women could be “frantic and unpredictable during their periods”. At a later meeting he asked her if she had made a decision on whether to take the demotion and stated that she needed to remain “rational” and he had seen how she had acted when “overtaken by a hormone tempest”.
The Claimant was subsequently signed off with work related stress and did not return. A grievance raised by the Claimant was partially upheld and it was accepted that Mr Serra had made inappropriate comments. In December 2021 the Claimant was dismissed by reason of redundancy.
She successfully raised a claim for unfair dismissal, harassment relating to sex and victimisation. Her claims for direct and indirect sex and disability discrimination were not upheld.
The Tribunal held that the comments made by Mr Serra met the definition of harassment as they violated the Claimant’s dignity and created a humiliating and offensive environment. The Tribunal noted that whilst they were friends, Mr Serra was speaking to the Claimant in a professional capacity and these comments were not acceptable. However, the Tribunal accepted the position that the demotion was not related to the Claimant’s sex but her recent poor performance which was the reason for the claims of direct and indirect sex discrimination failing.
It was also found that the principal reason for dismissal was that the Claimant had brought claims to the tribunal. The Tribunal concluded that had she been off sick and not brought a claim she would have been able to return to work in the new role.
For employers this case demonstrates how ‘banter’, even amongst colleagues who get on well, can easily cross the line. It is also a good reminder that employers are vicariously liable for harassment, discrimination, or victimisation committed by an employee unless they can show they have taken all reasonable steps to prevent the employee from doing so. That is quite a high bar to achieve but things like training and policies which are properly implemented and trained in can help.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.