To what extent do workers have to put up with “blunt” comments and “direct” management styles?
In-house counsel, Miss Sithirapathy, claimed she’d been discriminated against by her employer PSI CRO UK Ltd. PSI is based in the UK and Switzerland and provides services to customers involved in clinical trials.
Miss Sithirapathy was employed in London. A Swiss manager, Mr Schmidt, proposed a transfer to the Swiss office. When Miss Sithirapathy queried the salary he said she couldn’t be paid more because of her age. She responded she couldn’t take up the offer anyway –
for personal reasons – and he countered she wasn’t married and didn’t have children. Mr Schmidt went on to relate an anecdote about the tolerance extended to lesbians who worked in the Swiss office.
The following year she sought promotion to senior legal counsel but was told her appraisal, although satisfactory, indicated she wasn’t ready to be promoted: she was still at the beginning of her professional career.
Miss Sithirapathy was informed of a non-legal vacancy in Switzerland. She exchanged emails with Mr Schmidt, said she was keen and resigned from the London branch. She took up a position within Finance and Administration in Switzerland but lost her job after a month in a reorganisation. Subsequently she claimed that during her short time at the Swiss office she’d been sexually harassed. Mr Schmidt was to drive her to an appointment and she found herself outside a lift and about to get into it with him and didn’t immediately understand the necessity. She hesitated and Schmidt said, “What’s wrong? Are you scared?”
Miss Sithirapathy claimed:
- direct discrimination because of sex and/or age
- sexual harassment
- harassment related to age and/or sexual orientation
- victimisation
The Employment Tribunal accepted that in Switzerland there’s generally a link between age and salary. Also that Mr Schmidt had personal information about Miss Sithirapathy because it was relevant to relocation costs. He said he’d have made the same comments to a male employee and had mentioned the lesbian anecdote to explain that sexuality or other personal circumstances of employees are not an issue for the company. The Tribunal said Mr Schmidt’s comments were “bluntly put”. Mr Schmidt said of his comments by the lift that he was referring to his driving.
The Tribunal held that Mr Schmidt’s comments were unfortunate and awkward. “However we bear in mind the importance of not encouraging a culture of hypersensitivity or of imposing legal liability to every unfortunate phrase”.
As for her claim of age discrimination, the Tribunal held she was two and a half years into her first legal counsel role and still at an early stage of her career. Her appraisal demonstrated she wasn’t ready for a senior legal counsel role. “The same comments would have been made to someone who was at the same career stage as the claimant, whatever their age. Using the words ‘still young’ in this context was another way of saying the claimant was at the beginning of her professional career and was not a detriment to the claimant.”
Mr Schmidt’s comment, “What’s wrong? Are you scared?” was not conduct of a sexual nature. It was “an awkward remark intended as a joke … Although the claimant felt uncomfortable and intimidated, this comment did not, objectively, have the effect of violating her dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her.”
The Tribunal concluded that the two managers concerned “both have quite direct management styles. Mr Schmidt in particular spoke very bluntly to the claimant … However we have concluded that they did not cross the line such as to amount to unlawful harassment”