Singing a song amounted to sexual harassment

An employment tribunal has ruled that singing ‘Lets do it’ the well-known chorus of Barry and Freda amounted to sexual harassment.

Facts

The Claimant who was employed as the Head Chef claimed that he was sexually harassed by Mr Wilson, the General Manager of the hotel. He alleged that Mr Wilson made inappropriate comments and sexual references towards him. He gave examples that referred to Mr Wilson faking an orgasm when eating food that the Claimant had prepared, followed by a hug, a kiss on the forehead and “dry humping”.

He claimed that Mr Wilson engaged in unwanted conduct of a sexual nature over subsequent months in a various ways including frequent long hugs, touching his thighs, bottom and nipple. He also stated that Mr Wilson sang The Ballad of Barry and Freda in front of him, during which he attempted eye contact when singing the title and made gestures towards him.

The Claimant raised a grievance that Mr Wilson had behaved inappropriately towards him and that he felt unable to resume work due to anxiety as he felt Mr Wilson had sexually assaulted him. The grievance officer found part one to be partially proven, however was unable to find any evidence to support the claimant’s claims of sexual assault. The Claimant appealed against the grievance outcome; however, the appeal was not upheld. The Claimant resigned in June 2022 stating that he had been subjected to a “string of sexual assaults” and said he felt he had been treated unacceptably and felt forced to resign.

The Claimant pursued a claim for sexual harassment and unauthorised deductions from wages.

Decision

The Claimant succeeded in his claim for unlawful harassment with the Tribunal finding that the Claimant was subjected to unlawful harassment of a sexual nature by the respondents in a number of the ways alleged, but not all. The Judgment highlighted that Mr Wilson engaged in unwanted conduct of a sexual nature in the following ways:

• Hugging the claimant, the hugs being more frequent and increasingly long;
• Whilst driving the claimant home, Mr Wilson would slap the claimant’s knee-cap followed by a light squeeze and a shake. He also touched the claimant’s knee and placed his fingers on the claimant’s inner thigh;
• Placing his hand on the claimant’s bottom;
• Caressing the claimant’s nipple;
• Massaging the claimant’s back and shoulders;
• Hugging the claimant, kissing him on the forehead, and telling him “love you”; and
• Singing Barry & Freda, in front of the claimant.

In consideration of the Claimant’s allegation regarding Mr Wilson singing Barry & Freda, the Tribunal panel members watched a clip of the You Tube recording of the song. The tribunal stated that someone singing a song in a work environment would not normally amount to unlawful harassment. However, the song is about someone propositioning someone else for sex and the Tribunal accepted that the song was sung in the way evidenced by the Claimant with particular emphasis on the words ‘lets do it’ and those words being accompanied by eye contact and disconcerting gestures toward the claimant. The Tribunal therefore considered that the song took on a very different tone in the light of events and singing the song in the way that he did amount to unwanted conduct.

The ruling added: “It was clear from the claimant’s evidence that the song being sung to him in that way with the relevant emphasis, had the effect of violating the claimant’s dignity and creating a degrading, humiliating and offensive environment for him.”

The claim for unauthorised deductions did not succeed.

Comments

This is an interesting case which highlights the factors a tribunal will take into consideration when determining whether certain acts amount to sexual harassment.