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Comment regarding sexual favours was not sexual harrassment

08 April 2011 #Employment

In Dos Santos v Preview Services Ltd ET/2700170/10 the Claimant brought (amongst other claims) a claim against her employer of sexual harassment based on a comment made to her by her supervisor regarding sexual favours.
The Claimant had written a formal grievance regarding unrelated complaints and needed an envelope to place it in. She approached a supervisor and asked him if she could ask him a favour (i.e. if she could have an envelope). The supervisor allegedly replied "only if it is not a sexual favour". According to the Claimant she was offended by the remark but did not complain at the time as she did not want to be seen as a troublemaker.
The employer subsequently started a capability process regarding the Claimant`s alleged poor performance (such as not paying attention to her computer screen) and the Claimant went off sick. She later submitted a complaint regarding the comment and other perceived issues. When the meeting was finally held the Claimant asked to discuss her complaints and her employer explained that this would be dealt with at a separate hearing as it was not part of the capability process. The Claimant resigned the next day and brought claims of sexual harassment, discrimination and constructive unfair dismissal.
The employment tribunal held that the employer had treated the Claimant fairly and that she was not entitled to resign and claim constructive dismissal. 
The employment tribunal also rejected her harassment and direct sex discrimination claims. Although the tribunal accepted that the manager`s remark was "possibly unwise", it was an innocent joke between colleagues and the Claimant had overreacted.

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