Unwanted conduct amounted to unintentional harassment
In X v Y an employment tribunal held that comments and actions made at a charity fancy dress event held at the workplace, where a number of men dressed as women, had the unintentional effect of creating an intimidating, humiliating or offensive environment for a gay employee.
The claimant is gay. On a fancy dress “drag queen” day held to raise funds for charity, a number of male colleagues dressed up as women. One made a limp wrist hand gesture. Others were making direct comments to the claimant, such as “are you trying to look up my skirt.” He found this behaviour disgusting, especially as the ‘drag queens’ were acting and talking very effeminately, which he perceived as taking the micky out of gay men.
The tribunal upheld the claimant’s harassment claim relating to the drag queen day. The tribunal referred to the Acas guidance – A guide for employers and employees on sexual orientation in the workplace – which includes advice that harassment “may involve nicknames, teasing, name calling or other behaviour which is not with malicious intent but which is upsetting”.
This event was held in the workplace. Those scheduled to work that day had no choice but to continue working with the events going on around them. The conduct was unwanted and although there was no intention to create an intimidating, humiliating or offensive environment, it was reasonable in all the circumstances to determine that it nevertheless did have that effect, particularly given the claimant’s perception that he found the behaviour disgusting.
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