07/09/2021
Judging what is and isn’t appropriate to say is not necessarily straightforward these days but at a recent employment tribunal an employee’s case failed with the judge warning against ‘a culture of hypersensitivity’.
Nirosha Sithirapathy, a £100,000-a-year lawyer at a science company, filed 42 discrimination and harassment complaints against her employer.
The tribunal heard that on one occasion her manager asked why she was unwilling to move to work in another country given that she wasn’t married, didn’t have children or a boyfriend.’
She told him that she was not interested for personal reasons, but when he went on to recall an anecdote about the company’s Swiss office’s ‘tolerance’ of lesbian employees, Ms Sithirapathy felt ‘shocked’ and ‘uncomfortable’.
The following year Ms Sithirapathy was overlooked for promotion being told that she was ‘young’ and ‘needed to be patient’.
After a change of heart, she did take up a post with the company in Switzerland but lost her job a month later due to a reorganisation.
Ms Sithirapathy claimed that she had been forced out of the job and that she had suffered discrimination, sexual harassment, victimisation and harassment relating to age and sexual orientation.
The employment tribunal concluded that the comments made to Ms Sithirapathy were ‘unfortunate and clumsy’, but added, “We bear in mind the importance of not encouraging a culture of hypersensitivity or of imposing legal liability to every unfortunate phrase.”
Taking into account the context of the discussion, the tribunal did not feel the comments crossed the line such that they amounted to unlawful harassment.
Clearly, managers need to carefully consider how they phrase comments and questions, thinking about how they might be received by their employee, but that doesn’t mean that inadvertently causing someone to feel uncomfortable equates to harassment.
In this particular case, it was felt that the manager would have made the same comments to a male employee and that, rather than judging Ms Sithirapathy’s relationship status or sexual orientation, he was trying to demonstrate his understanding of the claimant’s family commitments in the UK, albeit in a rather awkward way.
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