AM v GF and Balfour Beatty Rail Limited – colleague baring backside in workplace was sexual harassment

In the latest of our series of posts on Employment Tribunal cases from the archives, we examine the case of AM v GF and Balfour Beatty Rail Limited ET/3300089/10. In this case the Employment Tribunal found that a male employee ‘mooning’ a female employee in the workplace – a joke gone wrong – constituted sexual harassment.

The facts in AM v GF and Balfour Beatty Rail Limited

AM, as she was anonymised in the Tribunal’s judgment, worked as a receptionist at Balfour Beatty Rail Limited’s Ruislip depot. GF was a male colleague at the Ruislip depot with whom AM was on good terms, albeit GF worked in a different area in the depot.

On 7 October  2009 AM was talking with a colleague, Mr Cambridge, in the reception area when GF walked in, having just parked his car in front of a fire exit. AM pointed out to GF that his car was blocking a fire exit and that he shouldn’t do this again. There was then a conflict of accounts as to what happened next: AM said that she turned away to resume her conversation with Mr Cambridge but, upon turning back to GF, she saw that he had dropped his trousers, bent over with his hands on his knees, and was shaking his bottom; AM’s recollection was that she could see his whole bottom, including his anus, and a lot of flesh. She stated that she was shocked and turned her head away.

GF’s version of events was that AM had told him that “if you do that again I’ll slap your ass”, to which he replied “you’re having a laugh, what did you  say?”. AM then said “I’ll smack your ass”. He said that he then went o the side of the counter, two metres away from AM, and bared the top of his buttocks to AM saying “go on then” in a joking fashion.

AM then reported GF’s conduct to her line manager, Ms Beattie, and Ms Beattie advised that AM report the matter to the HR department. GF therefore approached the operations manager, Mr Lloyd, and proceeded to complain about the incident. Mr Lloyd noticed that AM was upset.

GF was subsequently dismissed on 20 October 2009 for gross misconduct after admitting that he had ‘mooned’ AM,  with the chairman of the disciplinary hearing finding that GF’s actions amounted to obscene behaviour in a public place.

The Employment Tribunal’s decisions

The Employment Tribunal preferred the evidence of AM as to what had occurred on 20 October 2009, noting that Mr Cambridge corroborated AM’s version of events. The Tribunal found that GF had bared the whole of his backside but that AM had not seen his genitalia (as this would have been impossible); the Tribunal did find, however, that AM may have perceived that she had seen GF’s genitalia. The Tribunal found, further, that AM had been upset by the incident, as recorded by a number of people that witnessed AM shortly after the incident occurred.

The Tribunal found that GF’s actions had amounted to sexual harassment: his conduct was unwanted by AM (despite the history of ‘banter’ between AM and GF), that the conduct was sexual in nature, and that it was reasonable to consider the conduct as having offended AM – she perceived it as offensive and complained about it immediately, showing signs of distress.

The Tribunal also found that Balfour Beatty Rail Limited was vicariously liable for GF’s conduct, as it had failed to take reasonably practicable steps to prevent GF (and other employees) from engaging in actions which resulted in other employees being discriminated against, harassed, or victimised.

The Employment Tribunal awarded GF £4,500 in damages for injury to feelings, with GF being ordered to pay £1,000 and Balfour Beatty Rail Limited ordered to pay £3,500.

Our solicitors’ comments

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case shows that a history of ‘banter’ between two employees will not prevent the Employment Tribunal from finding sexual conduct was ‘unwanted’ if it was entirely disproportionate to the nature of the ‘banter’ that had followed before.”