A case in which a lawyer made dozens of discrimination and harassment complaints against a clinical research company has been dismissed by an employment tribunal because it did not want to encourage ‘a culture of hyper-sensitivity’.
Miss Sithirapathy, a former lawyer at PSI CRO UK, made 42 complaints against the company at the Reading employment tribunal, including unfair dismissal; wrongful dismissal; unauthorised deduction from wages; breach of contract; age discrimination; sex discrimination; victimisation; and harassment related to age, sex and sexual orientation.
In 2016, acting country manager Mr Schmidt offered the claimant a role at the company’s head office in Switzerland with a salary of 120,000 Swiss francs. He asked her how old she was and when she told him she was 27, he is alleged to have said “your age will prevent you from commanding a higher salary”.
Sithirapathy declined the job offer at that point for personal reasons. Schmidt is said to have asked what those personal reasons were and is alleged to have stated: “You are not married, you don’t have children and you do not have a boyfriend”. He is also said to have told the claimant an anecdote about the Swiss office’s “tolerance” of a lesbian employee.
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The claimant told the tribunal that she was shocked by the comments and did not know how Schmidt knew this personal information about her. Schmidt told the tribunal that he had been trying to explain that sexuality or other personal circumstances were not an issue for the company, and the tribunal accepted that although what he said was “clumsy”, it came with good intention.
In late 2016 she applied for a promotion to senior legal counsel level and was told by head of legal, Ms Ruf, that she was not ready for a promotion as she was not performing at the same level as the three people who held a senior legal counsel role. This was repeated at an appraisal in March 2017, in which she was told she was still young so should not expect a promotion yet. Sithirapathy complained that she had been discriminated against because of her age.
In May 2017 she was offered a new, non-legal, role with parent company PSI CRO AG in Switzerland, beginning in September of that year.
Her employment at the UK arm of PSI was terminated shortly before she took up her role in Switzerland. The tribunal was satisfied that this was not actioned in order to prevent her from having continuous service in her new role in Switzerland.
The claimant moved to Switzerland on 4 September 2017 but was dismissed in October 2017 due to a reorganisation of the team. She enquired about whether she could return to her legal counsel role in the UK but was told this was not possible as the job had already been filled.
After her dismissal from PSI CRO AG, the claimant brought a case in the Cantonal Court of Zug, Switzerland, which found the decision had not breached Swiss law.
The UK employment tribunal found that her complaints of wrongful and unfair dismissal could not succeed because she was not dismissed from the UK company – the contract came to an end by mutual agreement.
The complaints of sex, sexual orientation and age discrimination were also dismissed, along with claims of unlawful harassment and breach of contract.
Employment judge Emma Hawksworth said: “The comments [made by Mr Schmidt] were unfortunate and awkward. However, we bear in mind the importance of not encouraging a culture of hyper-sensitivity or of imposing legal liability to every unfortunate phrase.
“We have concluded that, in this case, taking into account the context of the discussion, these comments did not cross the line such that they amounted to unlawful harassment.”
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The judge also found the claimant had not been treated unfavourably at her appraisal, “The same comments would have been made to someone who was at the same career stage as the claimant, whatever their age. Using the words ‘still young’ in this context was another way of saying that the claimant was at the beginning of her professional career and was not a detriment to the claimant.”
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