Let’s do it? Maybe don’t.

30th May 2024

By Partner, Kevin McKenna

S Nunns v SBH Windermere Limited and A Wilson (20 June 2023) – The Employment Tribunal considered whether Victoria Wood’s famous comedy song “Let’s do it” sung by a Hotel Manager amounted to sexual harassment.  Spoiler alert – it did.

The Employment Tribunal awarded the head chef of a hotel £79,100 following a sexual harassment claim which involved, amongst other things, the sexualised singing of the Victoria Wood song, ‘Let’s do it’.

Sexual harassment is defined as unwanted conduct of a sexual nature that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. The conduct can manifest in a myriad of ways.  Here the Tribunal found that whilst ordinarily, singing a song in a work environment would not amount to unlawful harassment, this specific song was sung in a particularly sexual way, with emphasis being placed on the words “Let’s do it”. The way the song was sung had the effect of violating the employee’s dignity by creating a degrading, humiliating and offensive environment.

Facts of the case

Mr Nunns was employed by SBH Windermere Limited as the Head Chef from October 2021 until his resignation in July 2022.  Mr Nunns claimed that he was sexually harassed by the General Manager of the Hotel, Mr A Wilson. The instances of sexual harassment included:

  1. Mr Wilson making rude gestures, making inappropriate, sexual remarks about a cucumber;
  2. making sexual sounds after eating Mr Nunns’ food;
  3. hugging and touching Mr Nunns inappropriately; and
  4. singing the Victoria Wood song ‘Let’s do it’ to Mr Nunns whilst maintaining eye contact and making inappropriate gestures.

Mr Nunns alleged that from mid to late February 2022, the instances of unwanted physical contact increased and he would often receive unprompted and unprovoked massages to his back and shoulders. Mr Wilson told Mr Nunns that he loved him on a number of occasions and when challenged about this allegation, Mr Wilson stated that he told all his friends that he loved them.

In April 2022, Mr Nunns raised a grievance against Mr Wilson. A grievance investigation was conducted which resulted in a finding that the hotel had a very close team and a tactile culture, there was no evidence to support Mr Nunns’ claims of sexual assault. The investigator did, however, confirm that Mr Wilson had behaved inappropriately towards Mr Nunns. Nevertheless, Mr Wilson was not suspended during the investigation and no action was taken afterwards. Mr Nunns also made a complaint to the police about Mr Wilson but no charges followed.

Mr Nunns went on sick leave from early April 2022 until his resignation in June 2022. In his resignation letter, he referred to undergoing a “string of sexual assaults” whilst working at the hotel. The Tribunal also noted that another employee, Mr Lund, raised a grievance for sexual assault by Mr Wilson around a similar time and he also resigned. At no time during either investigation, was Mr Wilson told to stop hugging or touching his staff.

The Employment Tribunal held that to a significant extent, facts of the matter largely came down to one person’s word against the other as there was no genuinely corroborative evidence. With that in mind, the Tribunal needed to determine, on the balance of probabilities, who they found more credible. On review, they found that Mr Nunns’ evidence was simply more reliable.

Key takeaway points

Whilst some of the claims of sexual harassment are obviously inappropriate, the case highlights that some acts, such as singing a song may seem innocuous at first, but considering the facts as a whole, can amount to sexual harassment.

So what can employers do to protect the business?  First, get the right policies in place and make sure they are up to date.  Train all employees, and managers in particular, so that they understand their obligations and the policies themselves.  Update the training periodically.  Many HR consultants provide this training but so do we – and we think we do it better.  Ask your HR consultant how many times they have run a case to tribunal and then how many times they have run the “statutory defence”. If your training provider doesn’t know what the target looks like, they shouldn’t be the person helping you take aim.

Finally, a key takeaway is that some jokes which may seem hilarious in the workplace just aren’t quite so funny in a tribunal hearing.

In our May 2024 E-Bulletin, which you can find here, we wrote about how under the Worker Protection (Amendment of Equality Act 2010) Act 2023, there is a new duty for all employers to take reasonable steps to prevent sexual harassment and in cases where employers are found to not have taken reasonable steps, the tribunal may increase the compensation awarded by up to 25%. Employers need to ensure that are very clear workplace policies on appropriate behaviour, particularly from individuals in positions of power and where there is a claim for sexual harassment, employers should ensure that they investigate and deal with the issues as a matter of utmost urgency in order to avoid sexual harassment claims being brought against them.

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