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Council found to have breached Equality Act 2010 after claimant accountants subject to “unwanted conduct of a sexual nature” by fellow employee

Two accountants have won an Employment Tribunal case against the Royal Borough of Kensington and Chelsea after they were subjected to unwanted conduct of a sexual nature, in breach of the Equality Act 2010.

Another employee (Ms Shields) had variously suggested to colleagues in 2019 that the claimants were sleeping together, that the second claimant (Ms M Newton) was “s**king [the first claimant’s; Mr F Austin’s] c**k”, and that the second claimant was a ‘c**t’.

In a ruling running to 517 paragraphs Employment Judge Joffe urged the parties to agree a remedy.

The judge held that the council was in breach of section 26 (2) of the Equality Act 2010. This was because of the colleague’s abusive language to Ms Newton and allegation that she and Mr Austin were having sex.

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But the tribunal dismissed the rest of their claims for harassment, victimisation and of public interest disclosure detriment.

The parties to the case worked in the council’s finance department and for most of the time in a team formed to deal with the financial consequences of the Grenfell Tower fire disaster in 2017.

Relations between Mr Austin and Ms Newton on the one hand and Ms Shields and others on the other deteriorated as a consequence of disputes about whether work was being performed expeditiously and whether there was favouritism by Mr Austin towards Ms Newton.

The tribunal ruling stated: “This was a case where the parties had radically competing narratives.

“The claimants’ narrative in essence was that there was valuable work they were doing well, including the scoping of the housing legacy project. There was a conspiracy of Ms Shields and Mr Rahman, who were performing poorly, to extend their own employment by slowing down the financial statements work and reserving the housing legacy project for themselves.

“That led to Ms Shields’ hostility to Ms Newton and attempts to block her access to the finance team. It also led to her derogatory remarks which constituted harassment.

“The claimants blew the whistle on Ms Shields and Mr Rahman and complained about sexual harassment by Ms Shields. As a result they were subjected to detriment including termination of their contract.”

It said the respondent’s narrative was that Mr Austin shoehorned Ms Newton in to do a project about which he had not properly consulted, using an inappropriate process and without agreement from a senior manager.

Ms Shields argued she was doing the lion’s share of the senior Grenfell finance work under considerable pressure. After giving undertakings that the project would not impact on the team and Ms Shields, Ms Newton did not act in accordance with Mr Austin’s assurance and there was tension. Mr Austin took Ms Newton’s side in the resulting conflict with Ms Shields.

“We chose between those narratives insofar as was necessary to determine the issues; sometimes there were differences in perception which we did not need to resolve,” the tribunal said.

It was alleged that Ms Newton was described repeatedly by Ms Shields as “b**ch” and “c**t”

The tribunal found that Ms Shields referred to Ms Newton “as a c**t on one occasion [and] that was clearly conduct which was unwanted by Ms Newton”.

But they said this was not sexual as “there was nothing to suggest that Ms Shields would not have used it in respect of a man she disliked”.

There were tensions and resentments over how much work those on the two sides of the dispute did and the tribunal concluded “at least part of that picture was a perception that there might be a sexual relationship between the two.

"It was in that sense that we concluded that the animus Ms Shields had against Ms Newton had some relationship with sex. If the claimant had been male, Ms Shields would not, we concluded, have believed that the situation arose from a workplace affair between the two.

"The extreme vitriol involved in describing a colleague as a ‘c**t’, arose, we concluded, from the particular level of resentment created by the combination of factors we have identified, including the perception, probably not amounting to any sort of serious belief, that Mr Austin and Ms Newton might be having an affair.

“We were satisfied that the use of the insult, once Ms Newton found out about it, particularly in conjunction with the 29 November 2019 incident [when the abusive language was used], had the proscribed effect of violating Ms Newton’s dignity and creating an environment that she reasonably regarded as humiliating.”

Mark Smulian

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