Inappropriate remarks can constitute discrimination

Driskel v Peninsula Business Services and others, IRLB 636, EAT

• The day before Driskel’s interview with her male head of department (Huss)
he recommended she wear revealing clothes if she wanted to persuade him to give
her the job. She ignored this suggestion, left the interview before it was
finished and complained of sexual harassment.

The complaint was investigated by a Mr Sutcliffe but was not upheld. Driskel
refused to work unless Huss was moved but he refused and she was dismissed. Her
claims of sex discrimination against Peninsula, Huss and Sutcliffe and of unfair
dismissal against Peninsula were dismissed by the tribunal.

It held that Driskel had suffered no detriment, Huss’s remarks were flippant
and she had not complained about previous incidents. The dismissal was fair for
some other substantial reason; the impasse meant that either Driskel or Huss
had to leave.

On appeal the EAT held that the tribunal should consider the sex of both the
complainant and discriminator. Huss was heterosexual and his vulgar remarks to
men were not intimidatory but they were to Driskel, whose dignity was
undermined by the remarks.

The appeal was allowed against Peninsula and Huss only and the EAT accepted
that the dismissal was fair.

Construction of contractual documents

Security Facilities Division v Hayes and others (unreported), March 2000,
Court of Appeal

• Hayes and his colleagues were employed as electricians by SFD and because
their work required them to spend nights away they were paid a flat rate night
subsistence allowance. SFD unilaterally reduced the allowance by about 15 per
cent and Hayes started proceedings to recover the difference between the old
and the new rates.

The High Court upheld the claim on the basis that SFD had no right to vary
the rates. On the true construction of the contractual documents, which included
a staff handbook and travelling code, there was an express contractual
entitlement to the fixed-rate allowance.

SFD’s appeal to the Court of Appeal was unsuccessful. The court held that a
term could not be implied enabling SFD unilaterally to vary the rate of the
allowance even if the variation covered the actual costs incurred and employees
were reimbursed their expenses in full.

If the parties had intended for SFD to be allowed unilaterally to vary the
flat rate there would have been an express provision for it.

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