Dilawar Khan, director of Alpha Property Management Services, sent texts of a sexual nature while hiring Frances Macdonald as property manager.
Once he hired her, he “badgered” her with work requests, the tribunal report noted. When Macdonald became too stressed to work, Khan sent her “abusive, threatening, bullying and exhortative” messages before dismissing her.
The tribunal ruled that Khan's behaviour created a hostile and threatening environment for Macdonald, and was both sexual harassment and harassment on the basis of her sex. This led to unfair dismissal and wrongful deduction of wages, the tribunal ruled.
Helen Watson, head of employment at law firm Aaron and Partners, explained to HR magazine that inappropriate workplace behaviour could constitute sexual harassment.
“Whether this boss was joking or whether his intentions were sexual is immaterial, this is unprofessional and inappropriate conduct in the workplace amounting to sexual harassment. She would be able to pursue a sex discrimination claim against the employer and the boss,” Watson said.
“Sexual harassment can happen with one inappropriate comment. Employers need to be aware of this. This conduct towards the employee also took its toll on her mental health, which could give rise to a further claim of disability discrimination.”
Read more: Sexual harassment legislation: How can HR get ahead?
Macdonald applied for the job of property manager in February 2021. She spoke to Khan in a telephone interview, during which he asked if she was religious and had children, before rejecting her as he had other candidates in mind.
In April, Khan got back in contact with her as he was considering training a project manager. He invited her for a face-to-face interview.
The tribunal found that before interviewing her for the role he texted her boasting of being “surrounding by ladies” and “beautiful women”. The tribunal document noted that Khan frequently used emojis in his texts, including the “tongue out emoji” and “kiss face emoji”.
In one text he said: “We will have to go to Turkey together ... I have an apartment down south in the blue lagoons and we can do all the fun stuff [tongue out emoji]”.
Following an interview, Khan offered her the job. Before providing a contract, Khan continued to message her via WhatsApp. Macdonald complained of a migraine, which he suggested was because of stress. “I need sex when I’m stressed,” he wrote. He later invited her to dinner but said his wife should not know about it.
During evidence at the tribunal Macdonald said she thought the texts were sexual in nature and felt “disgusted” and “uncomfortable” about it, but didn’t know how to respond as she wanted the job and had not yet received the contract.
Once she signed her contract – which stated that she worked 20 hours per week, additional unpaid hours and days when requested and should be on call 24/7 – she started work on 4 May.
The tribunal noted that once she started working there Khan expected a “level of contact and control” with Macdonald, who he called and texted late into the night with requests and criticisms of her work.
The tribunal noted that from 15 May Macdonald's mental health declined “sharply”; she experienced migraines and suicidal thoughts.
On Monday 24 May Macdonald signed off work sick and drafted a resignation letter with the help of Acas. When she went to send the letter, however, she saw that he had already dismissed her.
Khan texted Macdonald demanding she return £1,462.19 she held on his behalf. He said if she did not that he would come to her house himself, and threatened to pursue charges of theft against her.
Macdonald responded: “I will not be meeting you in person as I have already suffered enough severe bullying, harassment and sexual harassment from you. This is why I am off sick due to the severe impact on my health, just like your previous PA.” Khan said her claims were baseless and threatened to sue her for defamation.
She returned some of the money to Khan, subtracting wages she had not been paid yet. However, Khan continued to threaten her with charges of theft and she eventually returned the rest of the money. Nonetheless Khan sent her a letter that said she owed him a net sum of £1,935.76 in respect of “training costs” and for “negligence and lack of responsibility recovery”. He said that his lawyers would start litigation against her.
The tribunal report described his messages as “abusive, threatening, bullying and exhortative”.
It found that Khan had subjected Macdonald to harassment on the basis of her sex, as his behaviour towards her and his previous PA indicated “a lack of respect towards and objectification of women”. It ruled his conduct was of a sexual nature and his messages had the effect of violating her dignity and creating an intimidating, degrading, humiliating and offensive environment.
Judge Moore also found that the company had unauthorisedly deducted wages and wrongfully dismissed her.
The company tried to counter sue for breach of contract, but the claim was unsuccessful. Compensation will be decided at a future hearing.
Read more: Mother awarded £90k for sex discrimination after job offer withdrawal
Charlie Barnes, director and head of employment legal services at the consultancy RSM UK, told HR magazine that a tribunal will rule employees have been sexually harassed if employers cannot prove that the behaviour did not occur.
“What amounts to sexual harassment is a subjective assessment,” he said.
“If an employee takes offence, feels intimidated or embarrassed by the behaviour they are subjected to, and it’s on the grounds of sex, an employment tribunal will conclude the employee has been subjected to sexual harassment unless there is evidence to show the behaviour didn’t occur or it wasn’t reasonable for the employee to feel that way.”
Employers will have increased obligations to protect employees from sexual harassment when new legislation comes into force later in the year, explained Jane Amphlett, partner and head of employment at law firm Howard Kennedy.
Speaking to HR magazine, she said: “At present under the Equality Act 2010 there is a defence available to an employer if it can show that it took "all reasonable steps" to prevent the discrimination.
“This will change with the introduction of the Worker Protection (Amendment of Equality Act) Act 2023 on 26 October this year, which introduces a proactive duty on employers to take reasonable steps to prevent sexual harassment in the workplace. There will be an even greater focus on the culture of an organisation.”
She added that employers should ensure policies are created and enacted alongside risk assessments to ensure employees are protected.
“Employers need to have effective and well-communicated policies and practices on sexual harassment, and regularly analyse their effectiveness i.e. through staff surveys,” she continued.
“Train staff to raise awareness of rights and polices on sexual harassment, including providing specific training to managers to support them in dealing with complaints.
“Undertake risk assessments to identify situations in which workers may be subject to sexual harassment and take action to reduce such risks and have clear channels for reporting complaints and consider using a reporting system.”
