Furlong v BMC Software Limited – discussions regarding lapdances and prostitutes constituted discrimination

In the case of Furlong v BMC Software Limited (ET/2701283/09) the Employment Tribunal found the employer liable for sex discrimination, sexual harassment, and victimisation where the employer had failed to deal with a complaint from an employee regarding colleagues’ use of and discussions regarding lap dancing clubs (and potentially prostitutes), and had discourage the employee from making a formal complaint about sexual harassment by a manager.

The factual background of Furlong v BMC Software Limited

Ms Furlong commenced employment with BMC Software Limited as a senior accounts manager in February 2007. This role was male-dominated and there was a ‘macho’ sales environment. In 2008 Ms Furlong attended a work form in Nashville (USA). During the work forum a company event was held at a well-known bar called “Coyote Ugly”; Ms Furlong declined an invitation to this event and was later told that other women in the company’s party had been encouraged to dance on tables and that, should she have been present, she would have been “up on the table” topless. During the same Nashville event a senior vice president of the company, Mr Fenelli, groped Ms Furlong’s button and told her that he would “like to eat her like a marshmallow”. Ms Furlong reported this to her line manager but was told that reporting the incident “would not do [her] any favours”. She was also told in another meeting by another manager that colleagues had been speculating about Ms Furlong having an affair with a married colleague during the Nashville event.

In October 2008 Ms Furlong raised a formal complaint regarding the following: that she had been disadvantaged in the allocation of accounts; that the working hours of the company were a disadvantage to her as a single parent; that she had been sexually harassed by a colleague at a work forum in Nashville (USA); and that inappropriate venues were used by the company for meetings, including lap dancing clubs and brothels.

All of Ms Furlong’s grievances were rejected by Mr Lewis, who heard the grievance. He concluded, among other things,  that there was no “concrete evidence” of colleagues attending lap dancing clubs. Ms Furlong appealed this decision but her appeal was rejected. Ms Furlong then served a discrimination questionnaire on the company but was told that there would be no reply to this as it was “oppressive”. She subsequently made Employment Tribunal claims for direct sex discrimination, indirect discrimination, sexual harassment, and victimisation.

The decision of the Employment Tribunal

The Employment Tribunal found against Ms Furlong with regards to her indirect discrimination claims, finding that the new work regime (regarding the allocation of work and long working hours) did not put women at a particular disadvantage and did not in fact put Ms Furlong at a disadvantage (as she was able to make the meetings).

The Tribunal did, however, find in Ms Furlong’s favour with regards to her claims for direct sex discrimination, sexual harassment, and victimisation, holding that:

  • She was directly discriminated against by comments made to her about rumours of a relationship with a colleague in Nashville – the Tribunal found that she was treated differently from men in the office and that this less favourable treatment was on the grounds of her sex
  • She was directly discriminated against by being discouraged from making a complaint about Mr Fenelli’s conduct
  • The use of lap dancing clubs and discussions about the in the office amounted to less favourable treatment as she would not have been able to participate in such discussions
  • The failure to properly investigate her formal grievance amounted to victimisation
  • The conduct of Mr Fenelli constituted sexual harassment and that the company was vicariously liable for this (as it was in control of the environment within which the harassment took place)
  • The use of lap dancing clubs by colleagues, and the company’s conduct in acquiescing to that conduct, amounted to sexual harassment

The Employment Tribunal awarded Ms Furlong £12,000 for injury to feelings, £20,618 for loss of earnings, and £2,000 for personal injury.

Our lawyers’ comments on Furlong v BMC Software Limited

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “Employers must take care to implement equal opportunities policies in the workplace and to take steps to educate their employees in these policies – a failure to do so can mean that the employer is held vicariously liable for acts of harassment by its employees, where it could have avoided that liability if it took reasonably practicable steps to implement the policies in the workplace.”