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Putting up with offensive conduct does not make it welcome

Putting up with offensive
conduct does not make it welcome

In Munchkins
Restaurant Ltd v Karmazyn and ors, the EAT held that although four women did
not complain about conduct of a sexual nature which had been directed towards
them over a long period of time, this did not mean that they considered the
conduct to be acceptable.

The four claimants
were migrant workers employed as waitresses, with between one and five years’
service. They complained that Mr Moss, the controlling shareholder: (i) made
them wear skirts which were too short; (ii) often showed them and asked
questions about sex books and sexually explicit photographs; (iii) constantly
made comments of a sexual nature to them; and (iv) engaged them in discussions
about sexual matters. Having decided that “enough was enough”, the claimants
resigned. The tribunal found that the claimants were subjected to harassment of
a sexual nature. The employer appealed on the basis that any alleged offensive
conduct has to be unwanted. If the claimants found the behaviour so
intolerable, why had they put up with it for so long?

The EAT rejected the
appeal. It was not extraordinary that the claimants “soldiered on as they did
for the years that they did, in the circumstances they did.” They were migrant
workers with no certainty of employment elsewhere. There are many situations in
life where people put up with unwanted conduct they find offensive because they
are constrained by the circumstances they find themselves in. Putting up with
such conduct does not make it welcome.

July 2010

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