THE LINE BETWEEN 'BANTER & 'HARASSMENT'
I recently came across several media stories about the case of Bratt v JGQC Solicitors, a case concerning legal secretary Megan Bratt, and her claims that she had been sexually harassed by her boss – the firm’s owner and senior partner Marcus Hall - during her time as a legal secretary at the firm.
The Daily Mail led with the headline ‘Legal secretary told she looked like a 'Love Island reject' wins sexual harassment claim after her boss said she looked nice’.
The Telegraph led with ‘Telling a female colleague they look ‘nice’ could be sexual harassment’.
Intrigued, I searched the Tribunal database for the actual Judgment, which can be found here. The conclusion (i.e. the application of the law to the key facts, is at page 18 onwards) and is worth 20 minutes of your time if you are trying to get to grips with where the tribunal could potentially draw the line between ‘banter’ and ‘harassment’.
Miss Megan Bratt was employed by the law firm for 7 weeks before resigning in February 2022. Bratt later issued a claim in the Tribunal, alleging she had been sexually harassed and this had caused her to resign. Bratt complained about several incidents, alleging that each incident amounted to sexual harassment (being conduct which has the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person).
When deciding whether conduct has this particular effect, the Tribunal must consider:
The perception of the Claimant
The other circumstances of the case and
Whether it is reasonable (objectively) for the conduct to have that effect
In other words, the test for sexual harassment has both subjective and objective elements to it.
It is clear from the Bratt Judgment that the Tribunal undertook a very careful examination of the context of each alleged incident, weighing up the evidence given by Miss Bratt, Mr Hall, and 4 other witnesses, before deciding if the conduct met both elements of the test.
In relation to the ‘you look nice’ comment, there was more to it than the headlines would have you believe. The Judgment reads:
‘There were a number of occasions the claimant alleges Mr Hall commented on her appearance. One was in the kitchen on 2 February 2022 where the claimant says Mr Hall leant against the wall with his arms folded and with a ‘creepy smile’ on his face commented that she looked nice and then asked if he was allowed to say it. The claimant says she found this violating (particularly in reference to the am I allowed to say it comment).’
The Claimant’s evidence was that she had tried to close down this interaction with Mr Hall by warning him to be careful about what he said, before making reference to footballer Mason Greenwood (a footballer who at that time, was accused of attempted rape and controlling and coercive behaviour). Miss Bratt told the Tribunal that in response to her comment, Mr Hall had said ‘yes but he was a rapist’. The Claimant had also sent her boyfriend a number of WhatsApp messages at the time, in which she described how uncomfortable Mr Hall had made her feel.
The Judge went on to find (in relation to the both the ‘looking nice’ comment and the ‘am I allowed to say that’ comment) that this was uninvited conduct of a sexual nature.
‘We find it must have had the effect of creating the requisite intimidating or offensive environment for her especially because she refers to someone who was being investigated at that time about serious allegations about rape and controlling and coercive behaviour. To respond with this comparison demonstrates by this point how uncomfortable she was and that she found it offensive and inappropriate which is also supported by her contemporaneous what’s app messages to her boyfriend about it.’
“This last comment by the Tribunal in particularly important. It’s absolutely vital that claimants in these cases are not painted as 'provocatours', when in fact they could be the victim of behaviour which is creepy at best, and sexual harassment at worst.”
Other incidents also met the test for sexual harassment, including when Mr Hall went into “graphic detail” about his ex-partner whom he caught cheating with a 22-year-old police officer, describing how he had found a used condom on the floor.
Other aspects of Mr Hall’s behaviour did not however meet the test, including when he asked Miss Bratt whether she would continue working for him if she split up with her boyfriend (the Tribunal found this discussion took place in the context of a wider discussion about relationship breakdowns), Mr Hall leaving her mini-eggs on her desk, and Mr Hall sending her a Facebook request (the Tribunal found this conduct was not sexual in nature, other people had received the request, and he hadn’t chased this up with a ‘why haven’t you accepted my request’ type message).
With regards to incidents which amounted to harassment, the judge ultimately rejected the firm’s contention that this was ‘merely office banter’. The Tribunal also commented that they ‘were very troubled by the way in which Miss Bratt’s allegations were investigated. The grievance statements and the comments made within them are telling of what was considered appropriate to say by the respondents’ witnesses and clearly go some way in supporting Miss Bratt as to what she alleges was said and how they all laughed at it and, importantly, what they all – including Mr Hall – would have believed was entirely appropriate in this workplace.’
Furthermore, in its conclusion the Tribunal said: “We are troubled that the way Miss Bratt chooses to dress or what she chooses to post on her social media is advanced as evidence of Miss Bratt not possibly being able to be offended, upset or made to feel uncomfortable or intimidated by the things we have found Mr Hall did say and do.”
Comment
This last comment by the Tribunal in particularly important. It’s absolutely vital that claimants in these cases are not painted as 'provocatours', when in fact they could be the victim of behaviour which is creepy at best, and sexual harassment at worst.
Because Miss Hall succeeded with some of her claims, she would have been entitled to an injury to feelings award (such awards being uncapped), however the parties reached a confidential settlement following the hearing.
As you will no doubt be aware, from October this year, employers will face additional penalties in a Tribunal if it transpires that they have not taken proactive steps to prevent sexual harassment in the workplace. That will involve, at the very least, having a clear policy in place about what will and won’t be tolerated; training staff on that policy; ensuring staff who do fall victim to such conduct have somewhere to go with their complaint; and taking this complaint seriously. Query whether the existence of this new duty would have made any difference in this case, given Mr Hall and others were apparently unaware that they were crossing a line in the first place. It would however have given the claimant more negotiating power at least.