Reed & Another v Stedman (IDS Brief 634 April 1999)
ST v North Yorkshire County Council [1999] IRLR 98
The decision of the Employment Appeal Tribunal in Reed v Stedman is more interesting for its implicit definition of sexual harassment than its perhaps predictable conclusion that Ms Stedman had been sexually harassed.
Ms Stedman was employed as a secretary for a year, during which time the marketing manager's behaviour towards her was, according to the tribunal, which found in her favour, bullying and pervaded with sexual innuendo.
Concluding that none of the incidents in themselves would be capable of constituting sexual harassment, the tribunal nonetheless decided that taken together, they represented a course of conduct which was a detriment to the applicant and amounted to unlawful harassment.
In upholding this decision, the Employment Appeal Tribunal refer to sexual harassment as consisting of 'words or conduct which are unwelcome to the recipient', undermining the employee's dignity at work and creating an 'offensive' and 'hostile' work environment. 'It is for the recipient to decide for themselves what is acceptable to them and what they regard as offensive'.
This emphasis on the definition of harassment being a subjective matter to be determined by the recipient is significant. There is no definition of harassment in the Sex Discrimination Act itself. The European Commission's Code of Practice on measures to combat sexual harassment does however state that harassment is 'behaviour which is unreasonable and offensive to the recipient...'
This is not necessarily the line that has been taken by tribunals in the past. For example in De Souza v The Automobile Association 1986 IRLR 103, the Court of Appeal defined harassment in terms of whether the 'putative reasonable employee' could justifiably complain about her working conditions. There was no reference to the reaction of the harassed employee herself.
Nonetheless, there are cases suggesting that a more subjective definition of sexual harassment is appropriate, most notably in British Telecommunications plc v Williams 1997 IRLR 134, and now in this Employment Appeal Tribunal decision. This has an added significance in the light of the analogous definition of a racial incident that is set out in the Stephen Lawrence MacPherson report : In the recommendations of the Report it is simply stated that a racist incident 'is any incident which is perceived to be racist by the victim or any other person'. In the Reed case, the EAT also decide that the original tribunal were entitled to conclude that by virtue of their vicarious liability, the employers had breached their implied contractual duty of trust and confidence. Ms Stedman was therefore entitled to resign and claim that she had been constructively dismissed.
This decision also addresses questions of employer liability. The Employment Appeal Tribunal upheld the tribunal's decision that by failing to investigate Ms Stedman's complaints and launch an investigation, the employers were liable for the manager's acts of harassment.
A different conclusion was reached by the Court of Appeal in the case of ST v North Yorkshire County Council, [1999] IRLR 98. In a claim for common law breach of duty, the Court of Appeal reject a claim pursued by a pupil in a school who alleged that he had been sexually harassed by the deputy headteacher on a school trip abroad.
There is a difference between case brought under the anti discrimination statutes - the Sex Discrimination Act and Race Relations Act for example, and claims under common law.
In both cases the employer is vicariously liable if the employee is acting in the course of his or her employment.
But 'in the course of employment' has a broad everyday meaning in discrimination law. The test is whether the event was something that was sufficiently under the control of the employer to have been prevented or reduced by good employment practice.
But 'in the course of employment' has a restricted and technical meaning in common law claims and the Court of Appeal have refused to extend the definition in light of the discrimination statute definition, even though the complaint was of discrimination.
The common law position requires that for an employer to be liable, the acts complained of must represent 'an unauthorized way of carrying out authorized duties.' In this case of ST v North Yorkshire County Council, however, the alleged assault by the deputy headteacher could not be regarded in any sense as an authorized activity, and, according to the Court of Appeal, the claim had to fail.