REWARD
Sexual harassment, self-employment and stereotypes
Dan Carder, Human Resources Content Consultant, Peninsula, shares details of three interesting recent employment law cases, along with their outcomes
Hearing other employees have conversations of a sexual nature was sexual harassment In the case of Davies v White Dove Garages, the Employment Tribunal (ET) had to consider whether a male employee who heard other male employees having conversations of a sexual nature was subject to sexual harassment. The claimant worked as a Sales Executive for the respondent for a little under one month before they were dismissed. Prior to that, they’d had a long career within the motor trade. The claimant worked within a communal sales office. They complained they were forced to overhear their colleagues talking about sexual acts, using offensive language of a sexual nature and referring to women in a derogatory way. This was discussed with their manager. However, no action was taken on it until after the claimant left the organisation. They brought various claims before the ET, including for sexual harassment. The claimant told the ET they’d overheard a range of offensive language being used in the workplace, including some of which was of a sexual nature and had complained to the respondent’s Sales Manager about this, along with the noise in the workplace. However, they asked that the complaints not be raised in a team meeting. They also provided evidence of conversations that took place which involved the discussion of the sexual activities of their colleagues and derogatory comments towards women, such as referring to one as the “local ride in the area” and one being “a bit rough around the edges.”
In defence, the respondent argued that the context of the work environment was important; the language was indicative of a small, established team that were comfortable and relaxed in each other’s company and who weren’t situated in a customer-facing area. After a lengthy examination of the facts, the ET concluded that there’d been unwanted conduct of a sexual nature. The claimant found the language and nature of the language used and comments made to be offensive and unprofessional and, the ET held, it was reasonable for them to do so. The ET held that the conduct didn’t have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading or offensive environment, as it wasn’t targeted at the claimant or anyone associated with them. And the claimant wasn’t a party to the conversation in which the comments were made. However, it did have the effect of violating the claimant’s dignity or creating an offensive environment for him. The comments were made while the claimant was in the same area and those making the comments and using the language understood that the claimant may overhear. Someone hearing it who may take offence, the ET clarified, is a risk that’s taken by those choosing to have that kind of conversation in open earshot in a workplace. The ET found that, as an employee, the claimant was entitled not to want to hear tales and language of a sexual nature in the workplace, even if what was being said was as a joke or a “humorous exchange” between colleagues in their
earshot. As a result, the sexual harassment claim was upheld.
‘Self-employed’ contractor was actually a worker, Tribunal rules In the case of Brophy v Rivergate Developments Ltd, the ET had to consider whether the details of the working relationship meant the individual was a worker and not self-employed. The claimant worked for the respondent for a short period. They were told that the role was that of a sub-contractor under HM Revenue and Customs’ construction industry scheme (“CIS”). After joining the organisation, the claimant was provided with a “starter pack” of the respondent’s policies they would be expected to follow. They were also given an offer letter with the terms under which they were to be working – these weren’t subject to any negotiation. The respondent told the claimant they were expected to give two weeks’ notice of holiday requests – this caused an issue when the claimant wanted the afternoon of Christmas Eve off. The respondent refused, not on the basis that there was work to finish, but because the claimant hadn’t requested it in advance. Shortly after, the working relationship broke down and the claimant stopped working. The respondent refused to pay the claimant for some of the time they worked, telling the claimant it was because they needed to rectify the claimant’s “poor workmanship”. They also failed to pay for holiday accrued and not taken. The claimant brought various claims, including failure to pay holiday pay and for
| Professional in Payroll, Pensions and Reward | December 2025 - January 2026 | Issue 116 44
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