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Many think they know what sexual harassment is. Even if they couldn’t recite a textbook definition, many employers, and employees feel confident that they would know it if they saw it in the workplace.

This is why the case of Sieberer v Apple Retail UK Limited may come as a surprise and serves as a timely reminder that just because it looks like harassment and seems like harassment, it may not be. If a company’s policies are unclear or not up to date, and training to employees has not been provided, an employer may be exposed.

Facts of Sieberer v Apple Retail UK Limited

Having your WhatsApp messages read aloud by a judge would be uncomfortable for anyone, but especially so if you have been talking about your “teenage style” office crush in what you thought was a private WhatsApp conversation with your friends, or where your actual wife learns what you have been saying about your “work wife”.

The Claimant’s friend and colleague, Thomas, had a crush on a woman, referred to by the tribunal as “M”, who worked in the same building as the Claimant. In messages to the Claimant, Thomas referred to his crush as “bae”, “my girl” and described his jealousy at another male colleague having the opportunity to interact with his “work wife.” Thomas did not know the name of the object of his affections.

In March 2023 the Claimant took a covert photo of M when she was in the office canteen and sent that photo to a WhatsApp group chat that existed between him, Thomas and two other colleagues stating her name, with a message, “you’re welcome Thomas.”

In April 2023 the Claimant saw M again, this time she was sitting on a sofa situated three floors below the Claimant. Again, the Claimant took a photo of M, but this time sent it directly to Thomas. On receipt of the photo, and in an effort to learn more information about M, Thomas showed both photographs to a female colleague. The female colleague felt uncomfortable and was further disturbed by the fact that these photographs were being taken and then being shared without M’s consent. She raised this with her manager and Apple conducted a disciplinary investigation into the conduct of both the Claimant and Thomas. M was never told about the photos.

Harassment under the Equality Act 2010 – A Recap

Sexual harassment occurs when one person engages in ‘unwanted conduct of a sexual nature’ that has the ‘purpose or effect’ of ‘either violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment’ for another person. Separate to this concept, there is harassment ‘related to sex’, which occurs when there is plain unwanted conduct (which might not be of a sexual nature) but is related to a claimant’s sex (being one of the nine protected characteristics set out in the Equality Act 2010).

It is important to note that, for both types of harassment, it is the effect that the conduct has on the other person that needs to be taken into account, and the harasser does not need to know that they are engaging in harassing behaviour.

Apple’s Policy

Apple’s Harassment Policy gave examples of harassing behaviour which included “slurs, jokes, statements, written or electronic communications, pictures, drawings…” and examples of sexual harassment as, “unwelcome sexual advances, requests for sexual favors [sic], and other verbal, visual or physical acts of a sexual nature.” The Harassment policy warned that any bad behaviour described in the policy would be subject to disciplinary action, which may include termination.

Apple’s Disciplinary Policy gave examples of gross misconduct, which included serious breaches of procedure and policy, acts of harassment, and “recording other team members on any device without permission.”

Disciplinary investigation

During the course of the disciplinary investigation Apple spoke to more female employees and learned that Thomas had made more than one feel uncomfortable. He had been showing other employees the pictures that had been taken of M and he openly described and discussed his various intentions towards M and, as it transpired, other individuals in the office on whom he had a ‘crush’.

In a disciplinary meeting the Claimant expressed remorse for taking the photos but highlighted the pictures that he had taken were not of a sexual nature and not intended to cause offence. The pictures had been taken in public and “didn’t portray her in a bad way.” Importantly, throughout the investigation only one employee said that she felt the idea of covert photos being taken, made her uncomfortable but she never actually saw the photos and her complaints centred on the comments from Thomas, rather than the photos themselves. No other employee said that they felt harassed by the Claimant’s conduct. The Claimant was nonetheless dismissed on the grounds that his conduct constituted ‘harassment’ and was breach of their Harassment Policy and constituted an act of gross misconduct.

The Claimant appealed and, along with some procedural failings, argued that there had not been a sufficient distinction between the comments made by Thomas and his own conduct, which were linked, but fundamentally different. It is relevant to note that up to this point, M had still not been told that the Claimant had taken her photo.

The Claimant’s dismissal was upheld and he brought a claim for unfair dismissal.

The Tribunal Decision

Apple’s Harassment Policy came under heavy fire, and it was not enough to protect the employer. The policy was “too vague” and, while it gave examples of harassing behaviour, it did not tell employees what harassment actually is. The tribunal pointed out that not all jokes amount to harassment and not all electronic communications do either, even when referring to someone who possesses a protected characteristic, therefore without knowing what the harassment is, how can employees moderate their behaviour accordingly?

The employer had focused on the mere fact that the photographs had been taken of a woman and had dismissed the Claimant because they had assumed that a man taking covert photos of a woman and sharing these, was inevitably harassment of some kind, be it, sexual harassment or harassment related to sex. They also found that the employer had conflated the actions of Thomas and the Claimant as no employee had said that they were uncomfortable by the conduct of the Claimant. The tribunal held that as no one was offended by the conduct of the Claimant, no harassment had taken place and there were no reasonable grounds at the time to dismiss the Claimant.

The judgment is not a carte blanche for employees to take out their camera phones. The Claimant’s compensatory and basic award were both reduced given the contributory fault of the Claimant. Sending photos of colleagues on WhatsApp was a “stupid form of engagement”.

More confusion ahead for employers?

The law on sexual harassment is changing in a matter of days, and we anticipate many employers will not be ready for what is to come. The change will bring about a positive duty on employers to take proactive steps to protect employees against sexual harassment. It will no longer be enough to simply have a latent policy that deals with harassment lurking around in the Staff Handbook, the employer will be required to take positive action.

How can Edwin Coe help?

  • Up-to-date policies on harassment – while simply having a policy that deals with harassment is certainly not enough, it is a starting point when it comes to tackling bad behaviour. An employer’s policies referring to harassment need to be up to date and in line with the existing law on harassment and the changes to the law on sexual harassment. We can conduct a full review of the policies and procedures in place to ensure that the employer is starting from the correct position.
  • Training – as we have seen in the case discussed above, harassment might not be what you think it is. Training for senior management can include what harassment is, how to investigate and conduct disciplinary proceedings as well as managing more nuanced issues such as anonymity of witnesses and communication with regulators.
  • Dealing with contractors and suppliers – the change to the law may mean that employers are liable in the event that an employee is subjected to unwanted conduct from someone that is not an employee. Edwin Coe can advise on the practical steps and amendments to supplier and contractor agreements that would offer protection.
  • Investigations – we can provide advice to employers when faced with allegations or put on notice that bad behaviour has occurred, or is occurring. Employers should not wait for formal complaints to be made but engage in positive steps. This can include formulating an investigation plan to ensure compliance with the employer’s obligations to all parties.

Should you require advice in relation to any of the matters raised in this blog, please contact Linky Trott or any other member of the Employment team

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.

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