In Houlihan v Sainsbury’s Supermarkets Ltd and Mr DM, an ET was faced with a situation which sometimes crops up in harassment cases where one person says “yes you did” and the other says “no, I didn’t”. Here the principle issue of fact was whether Mr DM said to Ms Houlihan (H) that he ‘felt like raping her’ and that he ‘had an erection’. While Mr DM had consistently denied making the remarks, his explanation that he said ‘you woke me up’ was not credible, he had previously made a comment some months before about wet dreams and another employee had heard the erection comment. This demonstrated a pattern of escalating sexual conduct which went from an unacceptable comment, which went unchecked, to something much worse. H, however, had been consistent throughout. At every stage where there has been a written record of her version of events, she had maintained that both the erection and rape comments were made. In addition, a colleague confirmed that H approached her on the day in question and said that Mr DM had used the both the words ‘erection’ and ‘rape’. H’s evidence was to be preferred, the remarks constituted unwanted conduct of a sexual nature which had the effect of violating H’s dignity and the ET awarded H £9,585 for injury to feelings.
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