Had the sexes been reversed i.e. male manager and female employee, it is likely that the sexual harassment claim would have succeeded. Most sexual harassment claims are brought by women against men although the protection applies to both sexes.
In this case, the Tribunal found that the manager’s conduct did not amount to harassment but did amount to direct sex discrimination on the basis that she would not have made the “highly sexualised comment” to a woman.
However, as the male employee did not succeed on his constructive unfair dismissal claim and could not show the remark led to his dismissal, his compensation is likely to be limited to injury to feelings only and not loss of earnings. Given that the remark appears to be one incident, the compensation should come within the lowest category of injury to feelings i.e. £0 – £6,000 and will probably be minimal.
As costs are not usually awarded in tribunal cases, the legal costs for both parties will far exceed the compensation even if funded by insurance.
Regardless of costs and compensation, the real damage for both parties is reputational following the extensive publicity and reporting. This is why most claims tend to settle!
The panel said that although the comments amounted to sex discrimination they weren’t harassment.
As well as striking out that claim they also found against Mr Elworthy’s claim of constructive unfair dismissal.
In their judgement, the tribunal ruled: “We have found that Ms Thompson’s comment left the claimant feeling ‘a bit uncomfortable’ and ‘not great’.
“It did not meet the bar for harassment but we find that the effect on him was nevertheless a detriment.
“It was a highly sexualised comment and we have no hesitation in finding that the comment was made because of the claimant’s gender.”