Although Scott v Commissioners of Inland Revenue (2004, IRLR 713) is not primarily a case about sexual harassment, the Court of Appeal has nonetheless made some valuable observations about how employers should deal with it.

What happened in this case?

Mr Scott was dismissed in August 2001 at the age of 56 on grounds of ill health, having worked for the Inland Revenue for over 40 years. He had become depressed after a claim of sexual harassment was made against him by a colleague, Miss Fitch, which the Inland Revenue decided in her favour.

The tribunal found that he had been unfairly and wrongfully dismissed, had been discriminated against on grounds of both sex and disability, and had been victimised. 
It made an award of compensation totalling £98,378 (based on the fact that he would have had to retire at age 60), but did not award Mr Scott any part of his costs. It also made separate awards for injury to feelings for unlawful discrimination and aggravated damages.

The tribunal was scathing about the way the Inland Revenue handled the accusation of sexual harassment, saying that: 'we cannot for a moment believe that any reasonable person viewing matters objectively could or would view the allegations as serious.'

What did the EAT decide?

The EAT dismissed his appeal against his award of compensation and the failure to award costs.

And the registrar of the EAT refused to let him change his notice of appeal to reflect the fact that the Inland Revenue had extended its retirement policy from age 60 to 65 while his appeal was pending, and which impacted on his calculations for compensation.

What did the Court of Appeal conclude?

The Court of Appeal said that: 

  • The employment tribunal did not err in making separate awards for injury to feelings and aggravated damages 
  • The award for injury to feelings of £15,000 was about right 
  • The award for psychiatric damage of £15,000 needed to go back to the employment tribunal to be reappraised, on the basis that the tribunal's prognosis for Mr Scott's health had been too optimistic 
  • Aggravated damages are intended to deal with cases where the injury was inflicted by conduct that was 'high-handed, malicious, insulting or oppressive' 
  • The decision not to award costs needed to be reconsidered to compensate him for the original unjust accusation

The court also gave him permission to appeal against the registrar's refusal to allow the application to be re-amended

What did it say about sexual harassment?

Just as importantly, it made some significant comments about the tone and approach that the tribunal adopted to the complaint of sexual harassment made by Miss Fitch.

In particular, it said: 'Sexual harassment is a serious matter in the workplace and needs always to be addressed where there is a complaint about it, but it does not have to become the subject of a state trial every time it arises. Incidents trivial in themselves can acquire a measure of seriousness, or perceived seriousness, if they appear to be recurrent. That is one reason why they should not be considered in isolation.'

It went on: 'What Miss Fitch had described in her complaint was a situation which is not uncommon in workplaces, and perceptions which, whether correct or mistaken, are usually real. We do not agree with the tribunal that it would have been appropriate for management simply to explain to Mr Scott that Miss Fitch's allegations "even if true were trivial" and to do no more than warn him as to remarks and conduct which could be taken out of context or cause upset to a sensitive young woman.

'The complaint was one which it would have been wrong for management to trivialise or to ignore, and we do not accept that management displayed an understanding of sexual harassment "that beggared common sense".'