In the context of allegations of harassment in the media, some guidance for employers would be welcome, particularly as the festive season approaches.
Mr David and Ms Hosany were both Governors of an NHS Trust. They developed a friendly relationship with each other and would frequently socialise and exchange private messages outside work. After a work-related meeting they had a meal and drinks together. Ms Hosany accused Mr David of placing his hands around her waist, pulling her to him and suggesting that they could be more than just friends.
According to her, she politely declined and he apologised. According to him, the events as described did not happen and he apologised for making a remark concerning her management style, which spoiled the evening. Over the next few days, a dispute arose in the workplace and Ms Hosany made a formal complaint to the Trust, alleging that she had been sexually harassed and subsequently bullied by Mr David because she rejected his advances. Mr David brought the libel action against Ms Hosany, which was the case before the Court.Mr Justice Moloney QC dismissed the libel action but of much more interest was his analysis of the allegations of sexual harassment. The Court suggested that where there is a dispute of fact between two people relating to a private incident and they are the only witnesses, the Court should do rather more than simply assess credibility of the parties and their versions of events. It was recommended that the Court should consider systematically:
Applying this approach to the facts of the case, the Court found that in the weeks preceding the incident, friendly messages were exchanged, which were consistent with a warm and perhaps growing friendship between them, rather stronger on his side. They included the use of nicknames and Ms Hosany using affectionate terms. The messages increased in frequency and there were occasional moves on Mr David’s part towards closer contact with Ms Hosany. Based upon this evidence, the Court concluded that the legal test for harassment was not satisfied concluding:
"In my Judgment a reasonable, right-thinking member of modern society would not consider it shocking or discreditable for a man, at the end of a social evening alone with a single woman of equal status whom he found attractive and friendly, to put his arm around her waist and ask her if she would like them to become closer… providing he did nothing positively indecent, and took no for an answer, most right-thinking people would accept this as a normal part of life…"
Much of the media coverage in recent weeks and months concerns assault or worse. Equally however, there has been something of a media storm concerning harassment and in particular sexual harassment. In this case, the context was regarded as particularly important but the Judgment was also to deal with the conduct itself. The evidence suggested that Ms Hosany was aware of the fact that Mr David had feelings towards her which went beyond friendship before the evening in question. In this context, even though Mr David disputed Ms Hosany’s version of events, his conduct still did not involve harassment.
To meet the legal standard for sexual harassment, conduct must be more than merely unwelcome and this case demonstrates that determining whether a complainant’s dignity has been violated or they have been subjected to an intimidating, hostile, degrading, humiliating or offensive environment, the context and contemporaneous evidence will be important in determining liability.In reality, this was always the case but the decision of the High Court is a useful reminder that not all unwelcome conduct will be regarded as unlawful.
Employers certainly need to raise awareness with regard to harassment and implement systems of reporting and investigation of complaints. Judging by many comments in the media however employers would also be well advised to explain what does and does not constitute harassment. This will involve explaining the importance of context and the value of relationships as well as what may (or may not) be acceptable behaviour in the workplace or at work-organised events.
Based upon news and social media, some guidance on the difference between flirting (on the one hand) and harassment (on the other) must be welcome.