Banter can amount to sexual discrimination

Employers should take an overview of sex bias claims, not treat comments in
isolation, appeal tribunal rules

When does sexual banter amount to sex discrimination? This issue is
revisited by the EAT in Driskel v Peninsula Business Services (2000).

Driskel was employed by Peninsula as an advice line consultant in May 1994.
Her role involved giving employment law advice over the telephone. In 1995,
Huss became her departmental head. As time went by, his relationship with
Driskel deteriorated. Driskel alleged this was caused by, among other reasons,
Huss’s penchant for sexual banter.

On 4 June 1996, a vacancy arose for the post of senior advice line
consultant (effectively Huss’s deputy). Driskel applied for the job. On the
evening before the interview, Driskel alleged (and Huss did not dispute) that
Huss told her she had better attend the interview in a short skirt and
see-through blouse, showing plenty of cleavage, and make an attempt (or
possibly a vain attempt) to persuade him to give her the job.

Driskel did not object to this comment at the time. When she turned up for
the interview the next day, she pointed out she was not wearing either a
see-though blouse or a mini-skirt to which he replied that would have to do,
and asked if she would like some tea.

Driskel subsequently complained of sex discrimination. The employers
investigated her complaint but rejected it. There then followed what the EAT
described as much toing and froing with the upshot that Driskel advised her
employer that she refused to work even with the senior advice line consultant
unless Huss was moved elsewhere.

The employer’s response was that this was not practical and that if Driskel
refused to work with her departmental head, her employment would have to be
terminated. This is what duly happened. Driskel then brought employment
tribunal proceedings complaining of both unfair dismissal and sex
discrimination.

The employment tribunal dismissed both her complaints: as far as the
complaint of sex discrimination was concerned, although the tribunal generally
preferred the evidence given by Driskel to that of Huss, it concluded that the
various incidents were trivial and did not amount to sexual harassment as
Driskel had not complained about Huss’s behaviour at the time. Furthermore, the
tribunal accepted that Huss’s remarks prior to the interview were intended to be
jocular and incapable of being taken seriously and therefore were not
discriminatory.

As far as the complaint of unfair dismissal was concerned, the tribunal
accepted that the reason for dismissal in the present case was some other
substantial reason, namely the breakdown in the relationship between Huss and
Driskel, and considered this was a potentially fair reason for dismissal. It
concluded that the employer had investigated Driskel’s complaint in a
reasonable manner and acted reasonably when faced with her demand that, in
effect, the employers should either dismiss Huss or herself.

EAT decision

Allowing the appeal against the tribunal ruling on the sex discrimination
issue, the EAT ruled:

• The tribunal was wrong to look at each incident of alleged sexual
harassment in isolation. It should have considered whether the remarks overall
amounted to less favourable treatment and a detriment within the meaning of
sections 6(2)(a) and (b) of the Sex Discrimination Act 1975;

• The employment tribunal was also wrong in treating the sexual banter
suffered by the complainant in the same way as if the remarks had been made to
a male employee. The tribunal should have asked itself whether the complainant
was the victim of sex based treatment;

• Had the tribunal approached the matter correctly, it would have put the
departmental head’s remark on the evening before the interview in the context
of the latest in a line of incidents and would have found that the remark was
objectively discriminatory since it sought to exploit the promotion interview
by reference to the sex of the interviewee and interviewer. In the absence of a
non-discriminatory explanation, this amounted to unlawful sex discrimination.

By Anthony Korn, a barrister at Barnards Inn Chambers

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