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When will a tribunal narrow their scope?

May 23, 2023

In a previous blog, my colleague Simon discussed four reasons why James Bond’s employer may want to look a bit closer at his behaviour within the workplace. It looked at the regularity of his unwanted sexual behaviour – much of which could be understood to amount to sexual harassment.

In Bond’s case, there is likely an ample amount of evidence to prove this rather overt behaviour (25 films worth), but what about when behaviour is more disguised? How far will a tribunal go in determining what amounts to sexual harassment?

The recent employment tribunal decision of Gasparovav v essDOCS EMEA Limited provides an indication of where a tribunal might choose to narrow their reach.

Within the case, the employee claimed that several “seemingly innocent” interactions she had with her employer carried a  subtle subtext. The basis for this was that her employer was much too powerful to make any obvious advances.

The employee relied upon several different interactions in making this claim, including unwanted elbow brushes when walking past her desk, the pair touching legs under the table as well as winks and leering looks. She had also, unsuccessfully, attempted to gather support from fellow female colleagues within the workplace regarding her employer’s alleged advances. In particular, she sought to argue that her employer’s conduct through emails displayed clear sexual advances.

After sending a draft presentation to her employer for review, the employee received the file back through an email attachment containing the abbreviation “ajg” within the title. Her interpretation of “ajg”? A Jumbo Genital.

In addition, the email sent from employer to employee contained the following wording:

“Can you please complete the following: The solution us currently used by xx Agris companies and yy Barge lines in corn cargoes in south-north flows in the ???? waterways…

Thanks”.

The employee contended that “xx” constituted a reference to kisses, “yy” a reference to sexual contact and “????” was her employer’s coded way of enquiring as to when she might be ready to engage in sexual acts.

Unlike James Bond’s undisguised meaning in respect of his little finger, the employer had reasonable explanations for these actions. Referring to “ajg”, the tribunal accepted that this reflected the initials of his name – Alexander John Goulandris. They were unwilling to accept the employee’s position that he would be too rich and powerful to identify himself using lowercase letters. Likewise, they accepted that the request for further information using “xx” and “yy” was genuine and a typical email that the employer would send. Her claims for sexual harassment were dismissed.

Though the decision of the tribunal here is likely unsurprising to most – it does perhaps highlight that the tribunal are more willing to open the door to at least hear evidence in potential claims of a sexual nature. The tribunal noted within the judgment that it is entirely plausible that an employee may not raise issues of harassment in the workplace due to both the difficulty in substantiating the allegations, and the stress of doing so.  Ms Gasparovav was ordered by the tribunal to pay £5,000 towards the employer’s legal costs.   

Accordingly, employers should be mindful that seemingly innocuous interactions may not be interpreted as such, and tribunals are becoming more and more willing to allow parties to litigate on these matters, even where the claims seem entirely unfounded.

If you have any questions on this on any other area of Employment law, please get in touch with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Nicola Burns

Nicola Burns

Director of Operations

Marketing Team

+44 1382 342217

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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