A woman who was referred to as a ‘sour and bitter individual’ has won her case for harassment related to her sex at the Employment Appeal Tribunal.
Sue Kemsley worked for Cambridgeshire County Council as an archivist, and was made redundant in 2019 after working there since 2007.
During her time there, she had a difficult relationship with one of her managers, Mr Anderson, and by 2014 she told the tribunal that this relationship had broken down.
In 2018, Kemsley emailed the archives manager telling him that she would raise a grievance with the council if she continued to be managed by Anderson.
Sex-based harassment
A planned move of the archive department meant that in the summer of 2019 two data input roles would no longer be required, putting her job at risk. After formal consultation, these two roles and those of four packaging assistants were made redundant.
Kemsley appealed the decision, saying it was not a genuine redundancy situation, claiming she had been “victimised” and that data input was only a small part of her role. The council advised her she did not meet the criteria for appeal and her employment ended in October 2019.
She brought a number of tribunal claims including sex discrimination, age discrimination, harassment and victimisation. An initial hearing took place in early 2022 and the claims were eventually dismissed when the written judgment was published in August 2022.
In the initial tribunal, she claimed that she had been described as a “sour and bitter individual” in an email, as well as “that woman”.
In her appeal, Kemsley said that the initial tribunal had given inadequate reasons for dismissing her case, and that the tribunal’s decision was “perverse” because it relied almost entirely on statements from her council colleagues.
She also challenged the tribunal’s decision that calling her a “bitter and sour individual” was not harassment related to sex because of the use of the word “individual” rather than man or woman.
At EAT, Judge Charles Bourne agreed that Kemsley’s side of the story had not been adequately represented. He also found that the finding that the comments were not related to her sex was “perverse”.
The EAT also heard of other alleged incidents such as an occasion when Anderson told Kemsley that her top was “revolting” and that she should see a psychiatrist because she had “serious psychological problems”.
The claim will now be handed back to a further tribunal to reconsider the facts of the case.
Samantha Dickinson, partner at law firm Mayo Wynne Baxter, said: “The judgment underscores the importance of addressing potential sexism in workplace interactions and taking into account the feelings of the victim and not just the preparator’s intention.
“Describing a colleague as ‘sour and bitter’, especially with gendered undertones like ‘that woman’ will usually lead a tribunal to make adverse inferences about the speaker’s state of mind.”
She added that comments about an employee’s demeanour, dress sense or appearance, which are unwelcome and offensive to the individual, risk being interpreted as sexual harassment.
“HR leaders should recognise the need for thorough, unbiased investigations when employees raise complaints of discrimination, sexual harassment or mistreatment.
“In Kemsley’s case, the initial tribunal dismissed her claims, largely relying on the employer’s defence, overlooking the significance of her experiences and the specific language used by her manager. This highlights the necessity for HR departments to give equal weight to both sides of a dispute.
“Finally, this ruling calls attention to the significance of keeping detailed records. Kemsley’s documentation of incidents, including inappropriate comments from her manager, helped bring attention to the case on appeal.
“HR leaders can learn from this by encouraging employees to document concerns and ensuring that appropriate measures are taken to investigate such issues comprehensively.”
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